[2000] KECA 253 (KLR)
The court found that the affidavit sworn by Mrs Rodrigues, the advocate on record for the appellants, did not constitute sufficient cause for her failure to appear when the appeal was called. The court noted that the explanation provided was hollow and unsupported by any affidavit from the clerk who was allegedly...
Source-derived case information.
- Citation
- [2000] KECA 253 (KLR)
- Parties
- Appellant: Mohammed Yakub & Mohammed Yusuf T/A Yasser Butchery; Respondent: Mrs Badur Nasa Saidi Nashean Robert M. Chege T/A Covenant Auctioneers
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 211 of 1998
- Procedural Posture
- Civil Appeal / Application for Restoration of Appeal After Dismissal for Non Appearance
- Outcome
- Application to restore the appeal dismissed with costs to the respondents.
- Legal Topics
- Restoration of Appeal, Dismissal for Non Appearance, Sufficient Cause, Advocate Neglect
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Mohammed Yakub & Mohammed Yusuf T/A Yasser Butchery
Appellant
Mrs Badur Nasa Saidi Nashean Robert M. Chege T/A Covenant Auctioneers
Respondent
Procedural Posture
Civil Appeal / Application for Restoration of Appeal After Dismissal for Non Appearance
Legal Issues
- 1 Whether the appellants have shown sufficient cause for non-appearance to warrant restoration of the dismissed appeal.
- 2 Whether the omission of the advocate on record should be visited upon the client in the circumstances.
Ratio Decidendi
The court found that the affidavit sworn by Mrs Rodrigues, the advocate on record for the appellants, did not constitute sufficient cause for her failure to appear when the appeal was called. The court noted that the explanation provided was hollow and unsupported by any affidavit from the clerk who was allegedly responsible for the failure to instruct the advocate leading Mrs Rodrigues. The court held that this was not a case where the omission of the advocate should not be visited upon the client. Consequently, the application to restore the appeal was dismissed with costs to the respondents.
Court Disposition
Application to restore the appeal dismissed with costs to the respondents.
Orders
- The application to restore the appeal is dismissed.
- Costs awarded to the respondents.
Full Case Text
Judgment text and source record
13 paragraphs
IN THE COURT OF APPEAL AT NAIROBI CORAM: KWACH, AKIWUMI & LAKHA, JJ.A. CIVIL APPEAL NO. 211 OF 1998 BETWEEN
MOHAMMED YAKUB & MOHAMMED YUSUF
T/A YASSER BUTCHERY ................................... APPELLANTS AND MRS BADUR NASA SAIDI NASHEAN ROBERT M. CHEGE
T/A COVENANT AUCTIONEERS ....................RESPONDENTS
(Appeal from a ruling of the High Court of Kenya at Nairobi (O'Kubasu J) dated 31st May, 1996
in
H.C.C.C. NO. 1945 OF 1995) **********************
RULING OF THE COURT
When an appeal has been dismissed under Rule 99 (1) for failure to appear, the appeal may be restored if in this case, it can be shown that the advocate on record Mrs Rodrigues, was prevented by sufficient cause from appearing. The rather hollow affidavit sworn to by her in this regard, does not constitute sufficient cause. It would have been different if there had been another affidavit by her clerk who as deponed in her affidavit, had failed to instruct the advocate leading Mrs Rodrigues who was busy elsewhere, to be in court.
This is not the sort of case that we think the omission of the advocate on record should not be visited upon her client. In the result, the application to restore the applicants' appeal is hereby dismissed with costs for the Respondents.
Dated and delivered at Nairobi this 29th November, 2000.
R. O. KWACH--------------------------JUDGE OF APPEALA. M. AKIWUMI------------------------JUDGE OF APPEALA. A. LAKHA-------------------------JUDGE OF APPEALI certify that this is a true copy of the original.
DEPUTY REGISTRAR