Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Application (intended appeal from former Appeal No 46 of 1977)· [1978] KECA 23 (KLR)

Belinda Murai & 9 others v Amos Wainaina [1978] KECA 23 (KLR)

Court of Appeal
25 May 1978
ELE.J.E Law
1,222 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed a lawyer's honest mistake can justify reviving a struck-out appeal, provided the delay is explained and the appeal has merit.

What this practically means

#

Executive summary

#
This was a single-judge application by intending appellants for extension of time to lodge a further appeal after their original appeal was struck out for non-compliance with rule 85(1)(h) of the Court of Appeal Rules, the record lacking a certified copy of the formal order. The omission stemmed from the former advocate's bona fide but mistaken view that a certified copy of the judgment sufficed. The court confirmed it has jurisdiction to extend time to reinstate an appeal that has been struck out rather than dismissed (Ngoni-Matengo Cooperative Marketing Union Ltd v Alimohamed Osman), but the discretion under rule 4 may only be exercised upon 'sufficient reason'. Rejecting the respondent's reliance on authority that advocate error can never suffice, the court endorsed the dicta in Shah H Bharmal and Brothers v Kumari and Hamam Singh and Others v Mistri that a legal advisor's mistake may amount to sufficient cause, though inordinate delay on his part may not. Weighing delay (none unreasonable after the striking out), public importance (the intended appeal concerns whether a Muhoi, a customary cultivator without proprietary rights under Kikuyu custom, can acquire registered land by adverse possession under Section 163 of the Registered Land Act, affecting an estimated 30% of Kikuyu homelands), and prospects of success (arguable conflict between customary law via Section 3(2) of the Judicature Act and the English common law applicable to registered land), the court allowed the application, extended time by seven days, directed reuse of the former record supplemented by the formal order and further grounds, and awarded the respondent costs in the appeal in any event.

Key legal issues

#
01

Jurisdiction over reinstatement of a struck-out appeal

Holding

The court has jurisdiction to extend time to enable a struck-out (not dismissed) appeal to be reinstated, provided sufficient reason is shown under rule 4.

Reasoning

Following Ngoni-Matengo Cooperative Marketing Union Ltd v Alimohamed Osman, the court distinguished between an appeal struck out and one dismissed; a struck-out appeal may be revived by extension of time. The jurisdiction is, however, conditional: under rule 4 of the rules of the court, 'sufficient reason' must be demonstrated before the discretion can be exercised at all.

p. 1
02

Whether an advocate's error constitutes sufficient reason

Holding

Yes - mistakes of a legal advisor may amount to sufficient cause, though inordinate delay on his part may not; the discretion is then exercised on the merits considering delay, public importance and prospects of success.

Reasoning

The court endorsed the dicta of Sir Alistair Forbes VP in Shah H Bharmal and Brothers v Kumari and Spry VP in Hamam Singh and Others v Mistri. The applicants' former advocate bona fide but mistakenly believed a certified judgment sufficed without a formal order, and no blame attached personally to the applicants. The court also noted that had the failure been the registry's, time would be extended without more ado.

p. 2
03

Merits and public importance of the intended appeal

Holding

The intended appeal raised arguable grounds on whether a Muhoi can acquire registered land by adverse possession, a question of general public importance affecting a large number of Kikuyu landowners.

Reasoning

The decision below equated a Muhoi with a tenant at will following Kimani v Gikanga and allowed acquisition of title by adverse possession via Section 163 of the Registered Land Act. The applicant contended Section 3(2) of the Judicature Act requires African customary law to apply where not inconsistent with written law. Whether customary status is 'inconsistent' with the written law raises arguable grounds; the appeal was not devoid of merit.

p. 2

Legal principles established

#
  • The Court of Appeal has jurisdiction to entertain an application for extension of time to enable an appeal that has been struck out (as opposed to dismissed) to be reinstated.
  • An advocate's mistake may amount to 'sufficient cause' for extension of time under rule 4.
  • Rule 85(1) requires the record of appeal to include copies of both the judgment or order appealed against and the formal decree or order.
  • In Kenya the extension-of-time discretion is more restricted than in England and can only be exercised after sufficient reason is shown.

Court orders

#
  1. 1.Time for filing the intended appeal extended by 7 days from the date of the ruling
  2. 2.The record of appeal used in the former appeal (No 46 of 1977) to be the record in the intended appeal, supplemented by inclusion of a copy of the formal order and new or further grounds of appeal
  3. 3.Costs of the application to be the respondent's costs in the appeal in any event
On appeal from
High Court
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time) and the court's inherent jurisdiction over appeals struck out but not dismissed

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (2)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Belinda Murai & 9 others v Amos Wainaina [1978] KECA 23 (KLR)", Case Analysis (1978). Civil Application (intended appeal from former Appeal No 46 of 1977). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1978/23/eng@1978-05-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.