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Court of AppealAllowedCriminal Application No NA17 of 1984· [1984] KECA 101 (KLR)

ANSWER KIPNGETICH vs REPUBLIC [1984] KECA 101 (KLR)

Court of Appeal of Kenya
10 December 1984
ZCZ R Chesoni
325 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that a litigant who did everything right should not be punished for a lawyer's failure to file an appeal on time.

What this practically means

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Executive summary

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This is a single-judge (in chambers) ruling of the Court of Appeal at Nairobi by Chesoni AG JA delivered on 10th December 1984 in an application for extension of time to file a notice of appeal in an intended second appeal. The applicant, Answer Kipngetich, had his appeal dismissed by the High Court (O'Kubasu J) on 3rd August 1984. His wife consulted him in September 1984 and instructed Mr Kositany, an advocate, to prefer a second appeal, but the advocate took no action. Upon discovering this, she instructed Odero and Orieyo Advocates on 9th November 1984, who filed the extension application the same day. Counsel for the applicant submitted that the applicant should not be made to suffer for his former advocate's omission; the respondent left the matter to the court's discretion. The court was satisfied that the applicant had taken the necessary steps to prosecute his appeal but was let down by his former advocate, that the delay was not inordinate, and that the matter involved the liberty of a subject. The court exercised its discretion in the applicant's favour and allowed the application, directing that the notice of appeal be filed within fourteen days from the date of the order. No authorities were cited and no costs order was made.

Key legal issues

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01

Extension of time to file notice of appeal where delay is attributable to an advocate's inaction

Holding

The court exercised its discretion in favour of the applicant because he had taken steps to prosecute the appeal but was let down by his former advocate; the delay was not inordinate and the appeal concerned liberty of the subject.

Reasoning

The applicant's wife instructed an advocate in September 1984 to prefer a second appeal, but that advocate took no action. On discovering this, she instructed new advocates on 9th November 1984, who filed the application the same day. The court was satisfied the applicant had done all he could personally and should not bear the consequences of the advocate's omission. The respondent left the matter to the court's discretion, and the short delay plus the criminal liberty interest justified extending time.

p. 2

Legal principles established

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  • An applicant who has taken necessary steps to prosecute an appeal but was let down by his former advocate should not be made to suffer for the advocate's omission; delay in such circumstances may not be inordinate, particularly where the liberty of a subject is at stake.

Court orders

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  1. 1.Extension of time granted to file the Notice of Appeal
  2. 2.The applicant shall file the Notice of Appeal within 14 (fourteen) days from the date of the order
On appeal from
High Court of Kenya at Nairobi
Civil Appeal No 369 of 1984
Jurisdiction invoked
Inherent/appellate discretion to extend time for filing notice of appeal (Court of Appeal procedural rules, not specified in the ruling)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "ANSWER KIPNGETICH vs REPUBLIC [1984] KECA 101 (KLR)", Case Analysis (1984). Criminal Application No NA17 of 1984. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/101/eng@1984-10-12

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