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Court of AppealAllowedCivil Application No NAI 43 of 1984· [1985] KECA 5 (KLR)

Kihuni v Gakunga [1985] KECA 5 (KLR)

Court of Appeal
11 June 1985
1,111 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed a late appeal where the delay was just nine days and caused by an advocate's oversight, not the client.

What this practically means

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Executive summary

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This was an application to the Court of Appeal for an extension of time within which to lodge an intended appeal from a judgment of the High Court at Nyeri (Patel J) delivered on June 14, 1984. The previous advocate filed a notice of appeal on June 15, 1984 and requested certified copies of the judgment and proceedings, but the letter of request was not copied to the respondent as required by rule 81(2) of the Court of Appeal Rules. By August 14, 1984, sixty days after the notice of appeal, the record of appeal had not been lodged, leaving the applicant some nine days late. A preliminary objection that the supporting affidavit was sworn by the applicant's son rather than the applicant was answered satisfactorily after written authority was produced. The respondent opposed the application, relying on an earlier ruling in Civil Appeal No 33 of 1983 and on the absence of an explanation for the previous advocate's delay. Platt Ag JA held that the earlier ruling was decided under the old rule 4 before its 1984 amendment, and that under the amended rule the court's discretion is free and is to be exercised judicially in the circumstances of each case, following Gatti v Shoosmith. Because the request for proceedings was not copied to the respondent, the exclusion of time under rule 81(1) and (2) was unavailable. However, the delay was very small and attributable to the advocate's inadvertence. The application was allowed, with the record of appeal to be lodged within thirty days, and the respondents were awarded the costs of the application.

Key legal issues

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01

Effect of failure to copy the letter of request for proceedings to the respondent under rule 81(2)

Holding

The applicant could not avail himself of the exclusion rule from the computation of the sixty-day period because the letter of request was not copied to the respondent.

Reasoning

Rule 81(2) requires the letter of request for copies of proceedings to be copied to the respondent for the time taken to obtain proceedings to be excluded from the sixty-day period. The previous advocate sent a copy of the letter of request for proceedings to the respondent but not the request itself as required, so the exclusion could not apply and the appeal was some 9 days late.

p. 3
02

Scope of discretion under the amended rule 4

Holding

The discretion is free and is exercised judicially in accordance with the circumstances of each case; a few days' delay from an advocate's mistake may justify extension.

Reasoning

The earlier ruling relied on by the respondent was given under the old rule 4 before its 1984 amendment. The amended rule follows the principle in Gatti v Shoosmith, where a few days' delay caused by a legal adviser's mistake was held a proper case for granting leave. The court applies the same approach to the present small delay.

p. 3
03

Fault of the advocate as opposed to the client

Holding

Where the advocate was at fault and had neither lodged the appeal nor applied for extension nor explained to the client, the delay may nonetheless be excused where it is small.

Reasoning

By August 14 the previous advocate had not lodged the appeal or sought extension, and had not explained to the client or the new advocate what happened. The fault lay with the advocate, not the client. Nonetheless, applying Gatti v Shoosmith, the very small delay due to the advocate's inadvertence warranted the exercise of discretion in the applicant's favour.

p. 3

Legal principles established

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  • The Court of Appeal's discretion under rule 4 is free and to be exercised judicially according to the circumstances of each case.
  • Time taken to obtain copies of proceedings may be excluded in computing the 60-day period for instituting an appeal only if the request was made within thirty days of the decision and copied to the respondent.
  • A small delay caused by the inadvertence of an advocate is a proper case for granting extension of time.

Court orders

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  1. 1.Application for extension of time allowed
  2. 2.The record of appeal to be lodged within 30 days
  3. 3.The respondents to have the costs of this application
On appeal from
High Court at Nyeri
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (discretion to extend time)

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, "Kihuni v Gakunga [1985] KECA 5 (KLR)", Case Analysis (1985). Civil Application No NAI 43 of 1984. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/5/eng@1985-06-11

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