[2005] KEHC 1546 (KLR)
The court found that the appellant's absence was due to his advocate's appointment as a magistrate and subsequent posting, a fact not controverted by the respondent. The court held that it would be unjust to deny the appellant the right to be heard due to his advocate's failure to inform him or the court of the...
Source-derived case information.
- Citation
- [2005] KEHC 1546 (KLR)
- Parties
- Appellant: Kihuyu Ndirangu; Respondent: Reuben Kinyanjui Ndirangu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 30 of 1995
- Procedural Posture
- Civil Appeal / Application for Re Admission of Appeal After Dismissal for Non Attendance
- Outcome
- Application for re-admission of appeal allowed; costs to the respondent.
- Legal Topics
- Reinstatement of Appeal, Non Attendance by Advocate, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kihuyu Ndirangu
Appellant
Reuben Kinyanjui Ndirangu
Respondent
Procedural Posture
Civil Appeal / Application for Re Admission of Appeal After Dismissal for Non Attendance
Legal Issues
- 1 Whether the appeal should be re-admitted after dismissal for non-attendance by the appellant's advocate.
- 2 Whether the appellant should be penalized for the advocate's failure to attend court due to appointment as a magistrate.
Ratio Decidendi
The court found that the appellant's absence was due to his advocate's appointment as a magistrate and subsequent posting, a fact not controverted by the respondent. The court held that it would be unjust to deny the appellant the right to be heard due to his advocate's failure to inform him or the court of the change. The court exercised its discretion to allow the application for re-admission of the appeal, emphasizing that litigants should not be penalized for their advocates' mistakes when such mistakes are not attributable to the litigant's own conduct.
Court Disposition
Application for re-admission of appeal allowed; costs to the respondent.
Orders
- Prayer (iii) of the application dated 23rd May, 2005 is allowed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
9 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI
Civil Appeal 30 of 1995KIHUYU NDIRANGU ……………………….…………… APPELLANT VERSUS REUBEN KINYANJUI NDIRANGU ………………….. RESPONDENTRULING
This is an application to re-admit the Appeal herein which was dismissed on 9th February, 2004 for non-attendance by advocate.
The appeal was fixed for hearing by consent on 9th February, 2004. In his supporting affidavit, the Appellant’s Counsel says that the Appellant’s previous Advocate, Mr Charles Opulu, could not attend the hearing because he had just then been appointed a Resident Magistrate and posted to Mombasa. This fact is not controverted. The Respondent simply says that Mr Opulu’s firm had indeed not been wound up, and that “the appointment of an advocate as a Magistrate does not mean that the firm … is wound up”.
That is neither here nor there. The fact is that Mr Opulu was unavailable on the day of the hearing as he had been posted to Mombasa as a Magistrate. Now, the Applicant cannot be punished for his advocate’s mistake in not informing his client or the Court. It would be highly unjust to deny him the right to be heard.
Accordingly, prayer (iii) of the application dated 23rd May, 2005 is allowed. Costs to the Respondent.
Dated and delivered at Nairobi this 20th day of September, 2005.
ALNASHIR VISRAM
JUDGE