[1998] KECA 189 (KLR)
The Court found that there was acceptable evidence before it that both the applicant and his counsel were indisposed on the date of hearing. In the circumstances, the Court exercised its discretion under rule 90 of the Court of Appeal Rules to reinstate the appeal, as the absence was not deliberate or due to...
Source-derived case information.
- Citation
- [1998] KECA 189 (KLR)
- Parties
- Appellant: Paul Njoroge Nduati; Respondent: Stephen Nduati Njoroge
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 60 of 1995
- Procedural Posture
- Civil Appeal / Application for Reinstatement of Appeal
- Outcome
- Appeal reinstated for hearing. No order as to costs.
- Judges
- RO Kwach, AB Shah, E Owuor
- Legal Topics
- Reinstatement of Appeal, Dismissal for Non Appearance, Court of Appeal Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Njoroge Nduati
Appellant
Stephen Nduati Njoroge
Respondent
Procedural Posture
Civil Appeal / Application for Reinstatement of Appeal
Legal Issues
- 1 Whether the appeal should be reinstated after dismissal for want of appearance.
- 2 Whether acceptable evidence of indisposition justifies reinstatement of the appeal.
Ratio Decidendi
The Court found that there was acceptable evidence before it that both the applicant and his counsel were indisposed on the date of hearing. In the circumstances, the Court exercised its discretion under rule 90 of the Court of Appeal Rules to reinstate the appeal, as the absence was not deliberate or due to negligence but was occasioned by illness. The interests of justice required that the appellant be given an opportunity to be heard on the merits of the appeal.
Court Disposition
Appeal reinstated for hearing. No order as to costs.
Orders
- The appeal is reinstated for hearing.
- There will be no order as to costs.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
IN NAIROBI
(CORAM: KWACH, SHAH & OWUOR JJ.A)
CIVIL APPEAL (APPLICATION) NO. 60 OF 1995 BETWEEN PAUL NJOROGE NDUATI ................................ APPELLANT
AND
STEPHEN NDUATI NJOROGE .............................RESPONDENT
(An Appeal from the judgment and order of the High Court of Kenya at Nairobi (Mr. Justice Butler Sloss) dated 27th April, 1988
in
H.C.C.A. NO. 75 OF 1987)
********************
RULING OF THE COURT
The respondent is not here, though served, to oppose the application. Ms. Sollei appeared for the applicant on 18. 12. 96 to seek an adjournment on the ground that the advocate in her chambers who was dealing with the appeal was ill. The adjournment was refused by this court and Ms. Sollei was asked to come back after half an hour to argue the appeal.
She did not come back. Technically the appeal was therefore dismissed for want of appearance. The applicant seeks orders under rule 90 of the Rules of this court for reinstatement of the appeal. There is acceptable evidence before us that the applicant was indisposed and so was his counsel briefed to appeaIrn fort heh im.c ircumstances we order that this appeal be reinstated for hearing. There will be no order as to costs.
Dated and delivered at Nairobi this 16th day of September, 1998.
R.O KWACH
....................
JUDGE OF APPEAL
A.B. SHAH
....................
JUDGE OF APPEAL
E. OWUOR
...................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR.