[2021] KECA 786 (KLR)
The Court found that the applicants had demonstrated sufficient cause for their non-appearance at the virtual hearing, as evidenced by the advocate's affidavit detailing technical difficulties in joining the session and prompt communication with the court. The application for restoration was filed within the...
Source-derived case information.
- Citation
- [2021] KECA 786 (KLR)
- Parties
- Applicant: Gabriel Owino; Applicant: Morris Ouma Omondi; Respondent: Odongo Ondwako Khadudu; Respondent: Oduori Ondwako Khadudu Alias Nyagweso; Respondent: Owino Ondwako
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 16 of 2016
- Procedural Posture
- Civil Appeal / Application for Restoration of Appeal Dismissed for Non Appearance
- Outcome
- Application allowed; appeal restored for hearing.
- Judges
- GG Okwengu
- Legal Topics
- Restoration of Appeal, Dismissal for Non Appearance, Court of Appeal Rules, Virtual Hearing Challenges
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gabriel Owino
Applicant
Morris Ouma Omondi
Applicant
Odongo Ondwako Khadudu
Respondent
Oduori Ondwako Khadudu Alias Nyagweso
Respondent
Owino Ondwako
Respondent
Procedural Posture
Civil Appeal / Application for Restoration of Appeal Dismissed for Non Appearance
Legal Issues
- 1 Whether the applicants have shown sufficient cause for non-appearance at the hearing of the appeal.
- 2 Whether the application for restoration of the appeal was made within the prescribed period under the Court of Appeal Rules.
- 3 Whether the appeal should be restored for hearing.
Ratio Decidendi
The Court found that the applicants had demonstrated sufficient cause for their non-appearance at the virtual hearing, as evidenced by the advocate's affidavit detailing technical difficulties in joining the session and prompt communication with the court. The application for restoration was filed within the statutory period. There being no opposition from the respondents, and considering the age of the appeal, the Court exercised its discretion to set aside the dismissal order and restore the appeal for hearing, directing that it be given priority.
Court Disposition
Application allowed; appeal restored for hearing.
Orders
- The application for restoration of the appeal is allowed.
- The orders of the Court made on 30th June 2020 are set aside.
Full Case Text
Judgment text and source record
36 paragraphs
IN THE COURT OF APPEAL
AT KISUMU
(CORAM: OKWENGU, GATEMBU & M’INOTI, JJ.A)
CIVIL APPEAL (APPLICATION) NO. 16 OF 2016
BETWEEN
GABRIEL OWINO...................................................................................1STAPPLICANT
MORRIS OUMA OMONDI...................................................................2NDAPPLICANT
AND
ODONGO ONDWAKO KHADUDU..................................................1STRESPONDENT
ODUORI ONDWAKO KHADUDU Alias NYAGWESO.................2NDRESPONDENT
OWINO ODWAKO..............................................................................3RDRESPONDENT
(Being an application for restoration of appeal herein which was dismissed
by the Court on 30thJune 2020)
********************
RULING OF THE COURT
1. In their application dated 27th July 2020, the applicants, Gabriel Owino and Morris Ouma Omondi seek an order for the restoration of their appeal herein which was dismissed by the Court on 30th June 2020 for non-appearance.
2. The proviso to Rule 102(1) of the Court of Appeal Rules provides that where an appeal has been dismissed for non-appearance, the appellant may apply to the Court for restoration of the appeal for hearing if he was prevented by sufficient cause from appearing when the appeal was called for hearing. Rule 102(3) of the Rules requires that such application should be made within 30 days of the decision dismissing the appeal.
3. In his affidavit in support of the application, the advocate for the appellant Charles Duke Nyamweya has explained in detail that the hearing of the appeal on 30th June 2020 was virtual; that he received the link for purposes of joining the virtual hearing the day before at 4. 30 p.m. and that on the hearing date, he had difficulties linking to the court despite his calls for help to the court registry. In his words:
“I tried to access the court through the link provided, the video was properly running I could see the honorable judges, Hon. Lady Justice Okwengu, Hon. Justice Kiage and Hon. Warsame. The Hon. Lady Justice Okwengu was addressing but I could not hear her address. Justice Warsame also tried addressing but still I could not get anything. I tried this severally until the Court dismissed the session.”
4. There is also evidence that counsel for the applicants promptly wrote to the Court on the very day explaining his challenges and subsequently filed, within the prescribed period, the application now before us for the restoration of the appeal.
5. We have not seen any opposition to the application and have also noted that the respondents were themselves absent during the aborted hearing on 30th June 2020.
6. In our view, the applicants have shown sufficient cause why the appeal should be restored for hearing. In exercise of the Courts discretion, we allow the application, set aside the orders of the Court made on 30th June 2020 and restore the appeal for hearing. Given that it is an old appeal, we direct that the same be fixed for hearing on basis of priority.
Costs of the application shall be in the appeal.
DATED AND DELIVERED AT NAIROBI THIS 19TH DAY OF MARCH, 2021.
HANNAH OKWENGU
....................................
JUDGE OF APPEAL
S. GATEMBU KAIRU, (FCIArb)
...................................
JUDGE OF APPEAL
K. M’INOTI
.................................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
Signed
DEPUTY REGISTRAR