SANGURA MABUSI v MASINDE MABUSI [1986] KECA 90 (KLR)
The bottom line
#The Court of Appeal refused extra time to file an appeal record because no Notice of Appeal existed for the ruling being challenged, even though the delay was the lawyer's fault.
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 extension of time to file the record of appeal out of time under rule 4
- 2.Whether the Notice of Appeal filed relates to the order against which extension of time is sought
- 3.Whether a litigant should be penalised for the failure of his advocates to file the appeal in time
Key legal issues
#Whether extension of time to file a record of appeal can be granted where no Notice of Appeal exists against the order under challenge
The application fails because the Notice of Appeal filed relates to the ruling of June 28, 1984, while the applicant's grounds target the ruling of August 18, 1983, against which no Notice of Appeal was given.
Rule 4 applications for extension of time to file a record of appeal presuppose a valid Notice of Appeal against the specific order. Where none exists, the applicant must first seek leave to file a Notice of Appeal out of time. The applicant's own affidavit showed he intended to appeal against the August 18, 1983 ruling but never gave notice of appeal against it, so extension of time could not be founded on that ruling.
Whether the blame of previous advocates in failing to file the appeal justifies extension of time
The fault lay with the applicant's several advocates, not the litigant personally, and it is not proper to penalise a litigant for his counsel's mistake.
The applicant had instructed his advocate to file the appeal against the August 18, 1983 ruling but this was not done. The court accepted that the applicant had been represented and advised by several advocates and the failure was theirs. However, this principle did not save the application because the underlying procedural defect - absence of a Notice of Appeal against the relevant ruling - remained uncorrected.
Legal principles established
#- To obtain extension of time to file a record of appeal, the applicant must show a valid Notice of Appeal against the particular order; if none was filed, he must first seek leave to file a Notice of Appeal out of time.
- A litigant should not be penalised for the mistake or fault of his advocates in failing to file an appeal in time.
- Even where the subject matter is land, proper procedure for placing the matter before the court must be complied with.
Court orders
#- 1.The application for extension of time to file the record of appeal out of time is refused and dismissed
- 2.Any party aggrieved by this ruling may apply to the Deputy Registrar in writing to refer the matter to the full court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya
- Kakamega Civil Suit No 39 of 1980
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time to file record of appeal out of time)
Relief refused
#Extension of time to file the record of appeal out of time
No Notice of Appeal had been filed against the ruling of August 18, 1983, which is the ruling the applicant is in substance appealing against; proper procedure had not been complied with
Costs
No costs order recorded in the judgment
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.
For the applicant to obtain the order he is seeking, he must show that he has already file a valid Notice of Appeal against the particular order and the facts relied on are regarding the particular order.
If no such notice is filed, then he should seek first for leave to file Notice of Appeal out of time.
It is not proper for the litigant to be penalised due to the mistake of his counsel.
Under the circumstances, this application is refused and dismissed accordingly. Any party aggrieved by this ruling can apply to the Deputy Registrar in writing to refer the matter to the full court.
Issues in the judgment
#Typographical error in date of filing of Notice of Appeal: 'July 16, 9184' should evidently be 1984
Internal inconsistency in dates: the judgment refers to an order of 'June 28, 1983' in one passage where the ruling is elsewhere stated as June 28, 1984
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "SANGURA MABUSI v MASINDE MABUSI [1986] KECA 90 (KLR)", Case Analysis (1986). Nai 71 of 1984 (KMU 5/84). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/90/eng@1986-02-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.