https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1058

Nyagaki v Ndungu & 7 others; Mung'au (Interested Party) (Civil Appeal (Application) 47 of 2020) [2026] KECA 1058 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KECA 1058 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) 47 of 2020 AO Muchelule, P Lilan & M Sila, JJA May 29, 2026 Between Lucia Nyagaki Applicant and Joel Kuria Ndungu & 7 others Respondent and Roy Gachungi Mung'au Interested Party (Being an application for setting aside of an order dismissing this appeal and for reinstatement of the appeal (D.K. Musinga, (P), Mumbi Ngugi & F. Tuiyott,JJ.A.) dated 21st January 2026 inNairobi Civil Appeal No. 47 of 2020) Ruling 1.This appeal was dismissed on 21st January 2026 due to the non-attendance of the appellant, Lucia Nyagaki, who is now the applicant. The present application, dated 30th January 2026 and principally brought under rule 105(1) of the Court of Appeal Rules, seeks the reinstatement of the appeal. 2.In the supporting affidavit sworn on 30th January 2026, Mr. Anthony Burugu, learned advocate for the applicant, explains the circumstances leading to the non-attendance. He depones that on 8th January 2026, his firm was notified that the appeal had been scheduled for hearing on 21st January 2026. Subsequently, on 20th January 2026, the court registry sent an email notifying parties that the matter would proceed before Court 2. 3.However, on the morning of 21st January 2026, the registry sent a further email indicating that parties were to attend Court 1 instead. Upon reviewing the matters listed before Court 1, counsel noted that the present appeal was not included among them. Consequently, counsel joined the virtual session for Court 2 at approximately 8:30 am, where the appeal was called out during the call-over, and counsel duly confirmed his attendance. 4.When the hearing session commenced, and the appeal was not called out, counsel sought clarification from the presiding Judge and was informed that the matter had, in fact, been listed before Court 1 for hearing. By then, it was approximately 11:00 am. Counsel immediately logged into Court 1, only to find that the session had already adjourned. He was thereafter informed that the appeal had been dismissed for non-attendance. 5.Counsel attributes the failure to attend to inadequate and unclear communication from the registry, particularly because the subsequent email directing parties to Court 1 did not include the present appeal among the matters listed for hearing before that court. He therefore urges the court to allow the application and reinstate the appeal. 6.This motion is not opposed. 7.The power to reinstate an appeal or application that has been dismissed for non-appearance is discretionary and is exercised on certain considerations. The proviso to rule 105(1) requires an applicant seeking reinstatement of an appeal dismissed for non-attendance to “show that he was prevented by any sufficient cause from appearing when the appeal was called for hearing.” In considering an application for reinstatement of an application dismissed for non-attendance, Nambuye, JA in Ngugi -vs- Thogo (Civil Application 372 of 2018) [2021] KECA 88 (KLR) stated;“ix.In an application for reinstatement of a court process, there is need to balance the requirement as to whether reasonable grounds have been proferred for reinstatement and the prejudice to be suffered by the opposite party if such an order for reinstatement were to issue bearing in mind at the same time that dismissal is a draconian order that drives parties away from the seat of justice and should therefore be employed sparingly.” 8.We have considered the application, the affidavit in support, and the submissions by counsel. Under rule 105(1) of the Court of Appeal Rules, the court may reinstate an appeal dismissed for non-attendance where sufficient cause is shown. It is now trite that the discretion to reinstate an appeal should be exercised where the applicant demonstrates a satisfactory explanation for the default and where the interests of justice favour restoration of the appeal. 9.In the present case, the explanation given by counsel for the applicant regarding the confusion arising from conflicting registry communication has not been controverted. The record shows that the appeal was initially scheduled before Court 2, but a subsequent communication redirected parties to Court 1 without listing this appeal among the matters before that Court. Counsel attended Court 2 and confirmed attendance during the call-over, only to later learn that the matter had been placed before Court 1, by which time the session had adjourned. 10.We are satisfied that the applicant’s non-attendance was neither deliberate nor intended to obstruct the course of justice, but was occasioned by genuine confusion arising from the registry communication. The application was also filed promptly and is unopposed. No indication has been shown that the respondent would suffer prejudice if the appeal is reinstated. 11.In the circumstances, we are satisfied that sufficient cause has been shown within the meaning of rule 105(1). Accordingly, the notice of motion dated 30th January 2026 is allowed. The appeal dismissed on 21st January 2026 is hereby reinstated for hearing on merit. Costs shall abide the outcome of the appeal. DATED AND DELIVERED AT NAIROBI, THIS 29TH DAY OF MAY, 2026.A. O. MUCHELULE.......................................JUDGE OF APPEALP. LILAN.......................................JUDGE OF APPEALSILA MUNYAO.......................................JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR