Loise Wainaro Wamiti v Peter Wainaro Wambunyu & 2 others [1986] KECA 89 (KLR)
The bottom line
#Kenya's Court of Appeal excused a fraud-related delay in filing an appeal record but made the client's advocates pay costs personally for their own negligence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant should be granted leave to lodge the record of appeal out of time
- 2.What period of delay should be excused - the period of the fraudulent clerk's concealment versus the subsequent delay after discovery of the fraud
- 3.Whether the certificate of delay obtained from the Registrar could assist the applicant given the failure to serve the request for proceedings
- 4.How the advocates' failure to act promptly after discovery of the fraud should be attributed
Key legal issues
#Effect of a clerk's fraud on computation of delay in lodging a record of appeal
The period of the clerk's fraud (up to May 23, 1986) is excused and cannot be held against the lay client.
The court held that a senior partner cannot monitor a fraudulent clerk's concealed dealings until the fraud is discovered. The fraud became known in May 1986 and the papers were received on May 23, 1986. The applicant was therefore blameless for the period of concealment, and the court excused that period when assessing whether extension of time was warranted.
Attribution of post-discovery delay between client and advocates
The three months' delay after May 23, 1986 was attributable to the advocates, who should have moved to save the appeal without demanding further fees from the client.
The time for lodging the appeal had expired in February 1986, yet three further months elapsed before the application. The firm's explanation - that the client did not bring fees - was rejected: the firm should have made good the lost time, advanced fees if necessary, and put things right, especially as it had also failed to serve the request for proceedings. The delay was therefore the advocates' fault.
Effect of failure to serve the request for proceedings on the certificate of delay
Because the request for proceedings was not served, the proviso to rule 81(1) did not apply and the Registrar's certificate of delay was immaterial.
The notice of appeal was filed and served on December 10, 1985, but the request for copies of proceedings was not served on the respondent. Consequently rule 81(2) applied and the proviso to rule 81(1) was unavailable, making the certificate of delay irrelevant. The court also criticised the Registrar for certifying a period extending to May 23, 1986 when copies were ready by February 17, 1986.
Weighing the respondent's res judicata complaint against the fraud and non-service
The prejudice caused by the fraud and failure to serve outweighed the respondent's complaint that the subject matter ought to be res judicata, so the application succeeded on the basis of the advocates' fault.
The respondent argued the appeal ought to be res judicata as she had not appealed at an earlier stage and had enjoyed the courts' indulgence. The court acknowledged this but was not satisfied there could clearly be no appeal, and held that the fraud and the failure to serve the request for proceedings outweighed that earlier indulgence. The application succeeded on the fault of the advocates.
Legal principles established
#- Where a clerk fraudulently conceals his dealings with a client, the period of the fraud cannot be held against the lay client.
- Where the request for copies of proceedings is not served on the respondent, the proviso to rule 81(1) of the Court of Appeal Rules does not apply.
- Advocates who discover their clerk has prejudiced an appeal ought to move strenuously to save the client, including advancing fees if necessary, and delay after discovery is laid at the advocates' door.
Court orders
#- 1.Extension of 30 days from the date of the ruling for the record of appeal to be lodged
- 2.The advocates should pay the costs personally unless they show cause why they should not, in which case the court will hear them
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court
- Not stated
- Jurisdiction invoked
- Rule 81 of the Court of Appeal Rules (extension of time to lodge record of appeal)
Relief refused
#Excuse of the whole period of delay from expiry of time in February 1986 to the application in August 1986
No explanation for the three months' delay after the fraud was discovered on May 23, 1986; the delay was attributable to the advocates, not the lay client
Reliance on the certificate of delay to cover the full period
The request for proceedings was not served on the respondent, so the proviso to rule 81(1) did not apply
Costs
The advocates should pay the costs personally unless they wish to show cause why they should not; if they do, the court will hear them.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
If a clerk is fraudulent and conceals his dealings with a client there is not much a senior partner can do until the fraud is discovered. This is not the first time that this has happened. The period of the fraud cannot be held against the lay client.
As the copy of the letter requesting proceedings was not served on the respondent the proviso to rule 81(1) of the Court of Appeal Rules does not apply
I find that the advocates ought to have moved stenuously to save their client in May, 1986 as soon as they had found out what had happened, and they did not do so.
I will grant an extension of 30 days from today’s date for the record of appeal to be lodged. The advocates should pay the costs personally unless they wish to show cause why they should not.
Issues in the judgment
#The judgment does not state the case number, the parties' names, or the title of the matter; the brief identifies parties only by their advocates and roles.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Loise Wainaro Wamiti v Peter Wainaro Wambunyu & 2 others [1986] KECA 89 (KLR)", Case Analysis (1986). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/89/eng@1986-09-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.