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Court of AppealAllowedCivil Application (as stated in judgment: Notice of Motion dated 24th July 2024, seeking restoration of application dated 31st March 2023 in relation to Civil Appeal No. 638 of 2019)

Kabuito Contractors Limited v Attorney General (Civil Appeal (Application) 638 of 2019) [2025] KECA 898 (KLR)

Court of Appeal of Kenya
23 May 2025
2,153 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal restored Kabuito Contractors' Supreme Court application, ruling a late court link that caused counsel to miss a virtual hearing was a valid excuse.

What this practically means

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Executive summary

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This is a single-judgment-of-the-court ruling of the Court of Appeal, Nairobi (W. Karanja, Jamila Mohammed and A. O. Muchelule JJ.A) delivered on 23rd May 2025 on a notice of motion dated 24th July 2024 by Kabuito Contractors Limited seeking reinstatement of its application dated 31st March 2023. That earlier application sought certification that matters of general public importance arose in an intended appeal to the Supreme Court against the Court of Appeal's decision of 3rd March 2023 in Civil Appeal No. 638 of 2019 (Okwengu, Warsame & Mativo JJ.A), and leave to appeal to the Supreme Court under Article 163(4)(b). The earlier application was dismissed on 26th June 2024 (Makhandia, Kantai & Abida-Aroni JJ.A) for non-attendance, the applicant's counsel having failed to receive the virtual court link in time owing to a registry error, a delayed flight caused by demonstrations in Nairobi, and his travel to South Africa. The Court identified the sole issue as whether reinstatement was merited under Rules 58(3) and (4) of the Court of Appeal Rules, 2022. Applying CMC Holdings Ltd vs James Mumo Nzioki, B.N. Kotecha & Sons Ltd v United Millers Ltd and Peter Nyamu Kabeu vs Eliud Karani, it held the two conditions - sufficient cause and filing within thirty days - were satisfied. It declined to examine the merits of the certification application. It allowed the motion, set aside the orders of 26th June 2024, restored the application for hearing on merit, and made no order as to costs. The application was unopposed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the application for reinstatement of the dismissed application dated 31st March 2023 is merited

Key legal issues

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01

Whether counsel's non-attendance at the virtual hearing on 26th June 2024 was attributable to sufficient cause under Rule 58(3) of the Court of Appeal Rules, 2022

Holding

Yes. The failure to attend was not the applicant's counsel's fault; the court link was sent late and to a wrong email address. Counsel made diligent efforts to obtain the link, and no prejudice was shown by the respondent.

Reasoning

The Court examined the email evidence ('KM-1') showing the email to counsel's office address could not be found, and time stamps of counsel's requests for the link between 9.12 a.m. and 9.44 a.m. on the hearing date. It found counsel applied industry, joined late only to find the application dismissed, and that the Registry's late dispatch of the link occasioned the non-appearance. The respondent filed no replying affidavit or submissions, so no prejudice arose.

p. 4
02

Whether the reinstatement application was filed within the prescribed thirty days

Holding

Yes. The dismissal was on 26th June 2024 and the reinstatement notice of motion is dated 24th July 2024, within thirty days.

Reasoning

The Court noted the dismissed application was dismissed on 26th June 2024 for counsel's absence and being overtaken by events, and that the reinstatement motion is dated 24th July 2024, satisfying the time requirement in Rule 58(4).

p. 4
03

Whether the court could consider the merits of the dismissed certification application

Holding

No. The court is refrained from dealing with the merits or demerits of the dismissed application, lest it trespass on the territory of the judge who will hear it.

Reasoning

Relying on Shah, JA in Peter Nyamu Kabeu vs Eliud Karani, the Court confined itself to the sufficient-cause enquiry and did not pronounce on whether the intended appeal raises matters of general public importance or whether leave to appeal should issue; those issues remain for hearing after restoration.

p. 4

Legal principles established

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  • Reinstatement of an application dismissed for non-attendance requires the applicant to show sufficient cause for non-appearance and that the application was made within thirty days of the decision (or of first hearing of it if unserved).
  • In determining an application for reinstatement, the court must not consider the merits or demerits of the application sought to be reinstated.
  • The discretion to reinstate exists to prevent injustice or hardship from excusable mistake, inadvertence, accident or error, and should not be denied to a litigant who clearly demonstrates such excusable mistake.

Court orders

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  1. 1.The notice of motion dated 24th July 2024 is allowed
  2. 2.The orders issued on 26th June 2024 dismissing the application dated 31st March 2023 are set aside
  3. 3.The application dated 31st March 2023 (certification of matter of general public importance and leave to appeal to the Supreme Court) is restored for hearing on merit
  4. 4.No order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Court of Appeal of Kenya (same court, dismissal of application dated 31st March 2023 on 26th June 2024, bench of Makhandia, Kantai & Abida-Aroni JJ.A)
Civil Appeal No. 638 of 2019 - Attorney General vs Kabuito Contractors Limited (decision under intended appeal delivered 3rd March 2023 by Okwengu, Warsame & Mativo JJ.A)
Jurisdiction invoked
Articles 50, 159, 163(4)(b) and 259 of the Constitution; Sections 3, 3A and 3B of the Appellate Jurisdiction Act, Cap 9; Rule 58(3) of the Court of Appeal Rules, 2022

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the result, we allow the notice of motion dated 24th July 2024, set aside the orders issued on 26th June 2024 and direct that the notice of motion dated 24th July 2024 be restored for hearing on merit.
p. 5Final orders - reinstatement allowed
We make no order as to costs.
p. 5Costs
the two conditions for reinstatement of an application which has been dismissed or allowed for non - attendance, is if a party shows that he was prevented by any suficient cause from appearing at the hearing; and whether the application is made within 30 days of the decision
p. 3Rule 58(3)-(4) reinstatement conditions
We find that there is suficient cause explained by Mr. Marete on his failure to attend court on time on 26th June 2024.
p. 4Sufficient cause found
We discern no prejudice to the respondent, who did not file a replying afidavit or written submissions in response to the instant application.
No prejudice to respondent

Issues in the judgment

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minor

The final orders refer to restoring 'the notice of motion dated 24th July 2024' - the reinstatement application itself - whereas the application sought reinstatement of the motion dated 31st March 2023. The restored application should presumably be the one dated 31st March 2023.

minor

The judgment text labels the quoted provisions of Rule 58 as '3.' and '4.' under a heading referring to Rule 58(3) and (4), without restating the sub-rule numbers within the quotation block.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kabuito Contractors Limited v Attorney General (Civil Appeal (Application) 638 of 2019) [2025] KECA 898 (KLR)", Case Analysis (2025). Civil Application (as stated in judgment: Notice of Motion dated 24th July 2024, seeking restoration of application dated 31st March 2023 in relation to Civil Appeal No. 638 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/898/eng@2025-05-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.