MOHAMED YAKUB & MOHAMED YUSUF t/a YASSER BUTCHERY vs MRS. BABURI NASA,SAIDI NASHEAN & ROBERT M. CHEGE t/a COVENANT AUCTIONEERS [2000] KECA 168 (KLR)
The bottom line
#Kenya's Court of Appeal gave late filers another chance, ruling a short eleven-day delay caused by a lawyer's genuine mistake should not kill an appeal.
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 time for lodging a Notice of Appeal and filing the record of appeal against the ruling of Githinji J. dated 22nd June 1998 should be extended
- 2.Whether the delay of eleven days in filing the appeal was inordinate and whether an explanation was offered
- 3.Whether leave should be granted to re-file the record of Civil Appeal No. 209 of 1998 (struck out) under a new number
Key legal issues
#Whether an eleven-day delay in filing the appeal was inordinate
The delay was not inordinate and the applicants were entitled to the exercise of discretion in their favour
The court weighed the short eleven-day delay, counsel's genuine mistaken belief that the certificate of delay had to be obtained before filing, and the interest of both parties being heard on the merits. Although litigation must come to an end, parties must be given a fair chance to be heard on their rights. The delay was held not inordinate and discretion was exercised for the applicants.
Whether counsel's mistake as to the requirement of a certificate of delay excused the late filing
A genuine mistake by counsel is pardonable and the court should rectify it in the interests of justice
Relying on Madan JA in Belinda Murai v Amos Wainaina, the court held that the cause of a counsel's mistake is immaterial so long as it is genuine. Counsel genuinely believed the 60-day period ran from receipt of the certificate of delay, which was not among the documents required by rule 81(1). The mistake was therefore excusable.
Whether the application was an abuse of process intended to prolong illegal occupation
The objection was rejected; the application was a legitimate attempt to have the appeal heard on the merits
The respondent argued the application was one of many intrigues to sustain proceedings and prolong occupation of the premises. The court acknowledged the litigation had been long but held that parties must be given a fair chance to be heard, and the numerous applications showed the importance of the litigation to both parties.
Legal principles established
#- A genuine mistake by counsel is a sufficient ground for extension of time regardless of how the mistake arose or counsel's seniority
- The certificate of delay is not a required document for lodging an appeal under rule 81(1)
Court orders
#- 1.The application filed on 17th March 1999 is granted
- 2.Applicants to file their Notice of Appeal within 7 days from the date of the order
- 3.Applicants to file the record of appeal within 14 days from the date of filing the Notice of Appeal
- 4.Costs of the application shall be in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya
- Not stated (ruling of 22nd June 1998)
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time)
Relief refused
#Documentary proof of counsel's illness not accepted as a factor
Counsel's claim of sickness was unsupported by credible documentary evidence
Costs
Costs of the application shall be in the appeal.
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.
It has been held by this Court that the cause of the mistake by counsel is immaterial, it makes no difference how the mistake arises so long as it is a genuine mistake.
A mistake is a mistake . It is no less a mistake because it is an unfortunate slip.
The stipulated documents for filing an appeal in terms of rule 81(1) are: a. A Memorandum of appeal in quadruplicate b. The record of appeal in quadruplicate c. The prescribed fee and d. Security for the cost of the appeal
I hereby grant the application filed on the 17th day of March, 1999 and order that the applicants do file their Notice of Appeal within 7 days from today's date and thereafter file the record of appeal within 14 days from the date of filing the Notice of Appeal.
Issues in the judgment
#Judgment text contains typographical corruption in places (e.g. 'motioTnh.e', 'M/s. Roedrigue' vs 'M/s Rodrigues', and inconsistent dates: appeal stated as filed 6th October 1998 but application described as filed 'immediately on 17th March, 1999' after a 3rd May 1999 hearing)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "MOHAMED YAKUB & MOHAMED YUSUF t/a YASSER BUTCHERY vs MRS. BABURI NASA,SAIDI NASHEAN & ROBERT M. CHEGE t/a COVENANT AUCTIONEERS [2000] KECA 168 (KLR)", Case Analysis (2000). Civil Application (Notice of Motion) filed 17th March 1999, relating to Civil Appeal No. 209 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/168/eng@2000-03-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.