Omar v Patrick M. Nyamu t/a Global Woods and Agro Hardware (Civil Application 19 of 2019) [2022] KECA 8 (KLR) (21 January 2022) (Ruling)
- Court
- Court of Appeal
- Case number
- 8
- Citation
- [2022] KECA 8 (KLR)
- Decided
- 21 January 2022
AI Summary
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Machine-generated — may contain errors. Not legal advice.
TypeCivil ApplicationPostureApplication to set aside and/or vary a previous ruling dismissing an appeal for non-attendanceCoramSG Kairu, A Mboholi-MSagha, P Nyamweya
Holding
The application is allowed, and the previous ruling dismissing the appeal is set aside. The appeal is restored for hearing, and the consent order is reinstated.
Facts
The applicant, Abdulrazak Omar, sought to set aside the dismissal of his appeal (Civil Appeal No. 116 of 2018) by the High Court of Kenya at Voi for non-attendance. The dismissal was based on a miscommunication between the advocate and the advocate's clerk regarding the hearing date.
Issues
- Whether the dismissal of the appeal was due to an excusable mistake or error
- Whether the applicant has sufficient or good reasons for not attending the hearing
Reasoning
The court found that the miscommunication was due to an inadvertent mistake and not the applicant's fault. The court exercised its discretion under Rule 102 of the Court of Appeal Rules to set aside the dismissal and reinstate the appeal.
Outcome
The application is allowed.
Orders
- The previous ruling dismissing the appeal is set aside.
- Civil Appeal No. 116 of 2018 is restored for hearing.
- The Consent dated 11th October 2018 in Civil Application No. 28 of 2018 is reinstated.
Remedies
- The costs of the application shall abide by the outcome of the appeal.
Authorities cited
Legislation (1)
- Section 102 of the Appellate Court Rules
Cases cited (4)
- Wilson Cheboi Yego v Samuel Kipsang Cheboi [2019] eKLR
- Musa Musyimi & 2 others v Martin Mati Mulinge & another [2021] eKLR
- Kitts Mbati Mukonyole v Levi Ndombi Mukonyole [2013] eKLR
- Philip Keipto Chemwolo and Mumias Sugar Co. Ltd v Augustine Kubende (1982) 1 KAR
Experimental AI summary generated by a language model, not a lawyer. It may contain errors or omissions and must not be relied on for legal decisions — the full judgment below is the authoritative source.
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