MIRIAM CHEMAIN V. ESTATE OF PHILOMENA CHEPEITUI REPRESENTED BY JOSEPH MARIACH

RULING OF THE COURT

[1] This is an application under various provisions of the Constitution, Section 3 A and B of the Appellate Jurisdiction Act and Rules 1(2), 42, 43 and 44 of the Court of Appeal Rules for orders that:

“(i) the order given on 26^th July, 2017 dismissing the applicant’s application dated 21^st April, 2017 be set aside.

(ii) the suit be reinstated and heard on merit.

[2] Surprisingly Rule 56(1) and 56(3) of the Court of Appeal Rules has not been cited. Rule 56(1) aforesaid gives the Court power to dismiss an application if the applicant does not attend on the day fixed for hearing. Rule 56(3) provides in part that where an application is dismissed, the party in whose absence the application was dismissed:-

“May apply to the Court to restore the application for hearing or to re-hearing if he can show that he was prevented by any sufficient cause from appearing when the application was called for hearing.”

Rule 56(4) provides that an application to restore a dismissed applicati…