Owino Ger v Marmanet Forest Co-operative & Credit Society Ltd [1987] KECA 1 (KLR)
The bottom line
#Kenya's Court of Appeal granted a late appeal because the lawyer's mistakes were honest, showing courts will forgive genuine errors but charge costs.
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 court should extend time for service of the notice of appeal
- 2.Whether the court should extend time for lodging the record of appeal
- 3.Whether the respondent's application to strike out the notice of appeal (No 166 of 1986) should succeed
Key legal issues
#Extension of time for late service of notice of appeal
The court extended time for service of the notice of appeal to January 4, 1987, deeming such service good, as the respondent had early knowledge of the appeal and suffered no hardship.
The purpose of rule 76 is to prevent a respondent acting to his disadvantage because he is unaware an appeal is being prosecuted. Here the respondent knew of the appeal from the High Court proceedings of June 26, 1986, the notice was in proper form, and no difficulty arose under rule 78. The delay resulted from counsel's genuine mistakes as to whether the notice required the Registrar's signature before service. No ulterior motive or bad faith was established, and the respondent suffered no special hardship.
Extension of time for lodging the record of appeal after failure to apply for proceedings within 30 days under rule 81
Although time could not be excluded under rule 81, extension could be sought and was granted for lodging the record within 21 days.
The court held that non-compliance with rule 81 does not bar an application for extension of time made outside the rule. The record was nearly ready by October, the mistakes were attributable to counsel's inexperience with this court's procedures, and the respondent's willingness to acquiesce in the stay of proceedings indicated the appeal was genuine. The court rejected the submission that the extension would be a useless exercise, referring to rule 85(1) and (2)(A).
Interlocutory appeals should be prosecuted with dispatch
A party taking an interlocutory appeal must not delay, because such delay postpones the hearing of the main trial.
The court observed that interlocutory appeals, by their nature, must be prosecuted without delay so as not to impede the main trial, and that grounds arising from interlocutory rulings may also feature in the appeal against the final judgment. It regretted the delay here but found it was the product of genuine mistakes rather than deliberate tactical conduct.
Legal principles established
#- Rule 4 of the Court of Appeal Rules confers an unfettered discretion on the court to extend time, and mistakes of advocates are capable of attracting the exercise of that discretion.
- Where rule 81 has not been complied with, time cannot be excluded under that rule, but an application for extension may nonetheless be made outside that rule.
Court orders
#- 1.Extension of time for service of the notice of appeal to January 4, 1987, service on that date deemed good service within the time so extended
- 2.Extension of time for lodging the record of appeal on or before 21 days from the date of the ruling
- 3.Application No 166 of 1986 to strike out the notice of appeal overreached and abates
- 4.Applicant to pay costs of application No 7 of 1987
- 5.Applicant to pay costs occasioned and thrown away in application No 166 of 1986
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (unfettered discretion to extend time)
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.
There is no special hardship arising out of a decision to extend time to serve the notice. Accordingly we propose to extend time to January 4, 1987 and we deem service on that date to be good service within the time so extended.
We consider it proper in this case to extend time for lodging the record of appeal on or before 21 days from today's date.
It also follows that application No 166 has been overreached and abates. But the applicant will pay the costs occasioned and thrown away in the course of that applications as well.
It was wise to leave this court with an unfettered discretion to examine the quality of all the mistakes which may occur, whether by an advocate and his firm or a client himself.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Owino Ger v Marmanet Forest Co-operative & Credit Society Ltd [1987] KECA 1 (KLR)", Case Analysis (1987). Civil Application No 7 of 1987. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1987/1/eng@1987-02-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.