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Court of AppealDismissedNot stated in judgment

WAMBUGU GAKUNGA v NGUNJU GAKUNGA [2000] KECA 107 (KLR)

Court of Appeal of Kenya
18 May 2000
581 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to revive an appeal filed nearly ten years late, because the applicant blamed his lawyer without any evidence to back it up.

What this practically means

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Executive summary

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This was a single-judge application under rule 4 of the Court of Appeal Rules seeking extension of time to file a Notice of Appeal and lodge an appeal against a judgment of Tunoi J delivered on 7 March 1991 in High Court Civil Appeal No. 8 of 1988. No steps to appeal were taken until the application was filed on 19 May 1999, nearly a decade later. The applicant explained that judgment was delivered in his absence; he had instructed his advocates to appeal if the decision went against him, but was never informed of the outcome, learning of the dismissal only when the Registrar of Lands required him to surrender the original title to Thegenge/Ihethe/16. He further alleged that when he later instructed his counsel to appeal, he was told there was no hurry. Owuor JA found the explanation wanting: the applicant gave no date for learning of the judgment, produced no documentary evidence of instructions to or reminders of the allegedly negligent advocate over eight years, and instead of appealing filed another suit in October 1999, apparently to prevent his brother burying his wife on the suit land, which suit was withdrawn by consent in May 2000. The court concluded the applicant was not candid and that the delay of almost ten years was inordinate, militating against exercise of the rule 4 discretion. The application was dismissed with no orders as to costs, delivered at Nyeri on 18 May 2000.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant should be granted extension of time to file a Notice of Appeal and lodge the appeal out of time
  2. 2.Whether the applicant's explanation for the delay of almost ten years was candid and sufficient to warrant exercise of the discretion under rule 4

Key legal issues

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01

Whether the delay of almost ten years in filing the Notice of Appeal and the appeal should be excused under rule 4

Holding

The application was dismissed because the delay was inordinate and the explanation, founded on alleged advocate negligence, was not credible or evidenced.

Reasoning

The judgment was delivered on 7 March 1991 and no steps were taken until 19 May 1999. The applicant blamed his advocate's negligence but produced no letter of instructions or reminder over eight years, and gave no date on which he learned of the judgment. He instead filed another suit in October 1999, later withdrawn, suggesting he was not candid. The delay therefore militated against exercising the rule 4 discretion in his favour.

p. 2

Legal principles established

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  • An inordinate and unexplained delay in instituting an appeal militates against the exercise of the Court's discretion under rule 4 in favour of an applicant; an applicant blaming advocate negligence must support that allegation with evidence such as letters of instructions or reminders.

Court orders

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  1. 1.The applicant's application for extension of time is dismissed
  2. 2.No orders as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
High Court of Kenya
High Court Civil Appeal No. 8 of 1988
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time discretion)

Relief refused

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Extension of time to file a Notice of Appeal and lodge the appeal

The delay of almost ten years was inordinate and the applicant's explanation, blaming his former advocate's negligence, was not candid or supported by evidence

p. 3

Costs

No orders as to costs - the application was dismissed with no orders as to costs

Quotable passages

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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 delay of almost ten years is inordinate it militates against my exercising my discretion under rule 4 of the Rules of this Court in favour of the applicant
p. 3Inordinate delay and rule 4 discretion
In the result I reject the applicants application and accordingly dismiss the same with no orders as to costs.
p. 3Final orders - dismissal of the application

Issues in the judgment

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minor

The judgment contains typographical errors, e.g. 'burrying' and 'a ccording', and the applicant's name and case number are not stated in the copy provided.

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, "WAMBUGU GAKUNGA v NGUNJU GAKUNGA [2000] KECA 107 (KLR)", Case Analysis (2000). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/107/eng@2000-05-18

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