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Court of AppealDismissedApplication dated 9th October, 1996 (intended appeal from H.C.C.C. No. 359 of 1981)· [1997] KECA 323 (KLR)

Njoroge Kung'u v Kamau Kung'u & 2 others [1997] KECA 323 (KLR)

Court of Appeal of Kenya
3 October 1997
ASA. B. Shah
944 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to revive a stalled appeal because the applicant's lawyer sat on the file for years, showing delay kills appeals.

What this practically means

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Executive summary

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This is a single-judge decision of the Court of Appeal at Nairobi, delivered by A. B. Shah JA on 3rd October 1997, dismissing an application dated 9th October 1996. The applicant sought two orders: extension of time by ten days to file and serve a Notice of Appeal, and extension of time by sixty days to file the Record of Appeal in an intended appeal against the refusal by Akiwumi J (as he then was) to set aside an award of elders concerning family land registered in the applicant's name for himself and as trustee for other family members. The application arose because the notice of appeal, though filed in time on 15th December 1989, was struck out by an order of the Court of Appeal of 16th September 1996: the letter bespeaking copies of the proceedings and ruling had not been copied to the respondents' advocates, so the applicant could not invoke the proviso to rule 81 of the Court of Appeal Rules, which stops time for filing the record until the bespoken copies are available. The court reviewed the correspondence history and found that counsel for the applicant was not diligent: copies were ready as early as 20th November 1992, yet counsel wrote only at irregular intervals, rarely copied letters to the other side, and appeared galvanized into action only by the respondents' 1996 application. Balancing the applicant's undoubted right of appeal against the respondents' accrued rights and the imperative of finality, the court declined to exercise its discretion in the applicant's favour, holding that allowing the application would re-open a 1981 matter. The application was dismissed with costs to the respondents.

Key legal issues

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Whether an extension of time should be granted to regularize counsel's error in not copying the letter bespeaking proceedings to the respondents' advocates

Holding

The application was dismissed; the discretion was not exercised in the applicant's favour because of counsel's lack of diligence and the prejudice that further delay would cause the respondents.

Reasoning

The notice of appeal had been filed in time but was struck out because the letter bespeaking copies was not copied to the respondents' advocates, depriving the applicant of the proviso to rule 81 which stops time running. The court found counsel's pursuit of the copies was desultory: letters were written at irregular intervals, most were not copied to the other side, and counsel appeared galvanized into action only by the respondents' 1996 application. The court held that allowing the application would re-open a 1981 matter, that litigation must end, and that the respondents' accrued rights and interests had to be considered.

p. 3

Legal principles established

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  • It is the duty of the intended appellant to move expeditiously to obtain the papers needed for an appeal; inordinate inaction by counsel may disentitle a party to an extension of time where rights have accrued to the other side.
  • In exercising discretion to extend time, the court must consider the interests of the respondent and the need for an end to litigation.

Court orders

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  1. 1.The application dated 9th October, 1996 is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Court of Appeal Rulesrule 81 (and its proviso)
On appeal from
High Court of Kenya
H.C.C.C. No. 359 of 1981
Jurisdiction invoked
Inherent discretion of the Court of Appeal to extend time under the Court of Appeal Rules (rule 81 referred to)

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, "Njoroge Kung'u v Kamau Kung'u & 2 others [1997] KECA 323 (KLR)", Case Analysis (1997). Application dated 9th October, 1996 (intended appeal from H.C.C.C. No. 359 of 1981). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/323/eng@1997-10-03

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