Lydia Wanjiru Mwangi v Rajnikant Joshi [1988] KECA 135 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a late appeal record where the delay was only days long and the lawyer admitted fault, but the appellant paid 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 applicant should be granted an extension of time to lodge the record of appeal out of time
- 2.Whether the notice of appeal should be struck out under Rule 80 of the Court of Appeal Rules for failure to lodge the record of appeal within time
Key legal issues
#Whether extension of time should be granted where the delay is short and caused by counsel's mistake
The court granted the extension: the delay of 7 days was short, counsel took full responsibility, and there was an arguable appeal, so there was enough material to make a just order under Rule 4.
The court applied the approach in Gatti v Shoosmith as elucidated in Palata Investments Ltd v Sinfield Ltd, which holds that where delay is very short and there is an acceptable excuse, the appellant should not as a general rule be deprived of the right of appeal. Counsel admitted the mistake and apologised; the appeal was arguable. The court found sufficient material to make a just order under Rule 4 and granted the extension despite the lack of particulars in the affidavit.
Whether the notice of appeal should be struck out under Rule 80
The striking-out application failed because the extension of time cured the failure to lodge the record within time.
The respondent sought striking out under Rule 80 on the ground that the record of appeal was not lodged within time. Once the court extended time under Rule 4, the step said to be lacking was cured, and the striking-out application was overreached.
Legal principles established
#- Where delay in lodging a record of appeal is very short and there is an acceptable excuse, as a general rule the appellant should not be deprived of the right of appeal, and the merits of the appeal need not arise
- A mistake of a legal adviser causing a short delay can be a proper case for the court to exercise its jurisdiction to grant an extension of time
Court orders
#- 1.Extension of time granted to lodge the record of appeal
- 2.The Record of appeal shall be lodged in 30 days from the date of the ruling
- 3.The application to strike out the appeal is overreached
- 4.The applicant must pay the costs of both applications
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time jurisdiction)
- Consolidated with
- Application No 6 of 1988
Relief refused
#Striking out of the notice of appeal
The extension of time overreached the striking-out application
Costs
The applicant must pay the costs of both applications.
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.
The Record of appeal shall be lodged in 30 days from todays date.
As a result, the application to strike out the appeal has been overreached.
The applicant must pay the costs of both applications.
in cases where the delay was very short and there was an acceptable excuse in the delay as a general rule the appellant should not be deprived of his right of appeal and so no question of the merits of the appeal would arise.
But looking at the matter as a whole, we find that there is enough material upon which to make a just order, as is required by Rule 4 of the Rules.
Issues in the judgment
#The judgment states both that the full 60 days had been sent on July 7, 1987 and that counsel took 67 days; the computation of the delay period is internally unclear
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lydia Wanjiru Mwangi v Rajnikant Joshi [1988] KECA 135 (KLR)", Case Analysis (1988). Civil Applications Nos 143 of 1987 and 6 of 1988 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/135/eng@1988-01-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.