MOHAMED YAKUB & MOHAMED YUSUF t/a YASSER BUTCHERY vs MRS. BABURI NASA,SAIDI NASHEAN & ROBERT M. CHEGE t/a COVENANT AUCTIONEERS [2000] KECA 306 (KLR)
The bottom line
#Kenya's Court of Appeal gave butchers a second chance to appeal, ruling that a lawyer's genuine mistake justifies excusing an eleven-day filing delay.
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 delay of eleven days in filing the record of appeal should be extended under rule 4 of the Court of Appeal Rules
- 2.Whether counsel's genuine mistake as to when time for filing an appeal begins to run constitutes a sufficient explanation for the delay
- 3.Whether the applicants should be granted leave to re-file the struck-out Civil Appeal No. 209 of 1998 under a new number
Key legal issues
#Whether an eleven-day delay in filing the record of appeal was inordinate
The delay was not inordinate and the applicants were entitled to the exercise of the court's discretion in their favour.
The court weighed the principle that litigation must come to an end against the interest of justice that both parties be heard on the merits. Counsel's mistaken belief that the certificate of delay had to be obtained before lodging the appeal was a genuine mistake, and the delay of only eleven days was not inordinate.
Whether counsel's mistake as to the documents required under rule 81(1) excused the delay
The certificate of delay was not among the documents required for filing an appeal under rule 81(1), and counsel's mistaken belief to the contrary was a genuine mistake that should be rectified in the interests of justice.
Rule 81(1) requires only a memorandum of appeal, the record of appeal, the prescribed fee and security for costs. Waiting for a certificate of delay was unnecessary. Following Belinda Murai v Amos Wainaina, a mistake by counsel, even an experienced one, does not close the door of justice where the interests of justice dictate rectification.
Legal principles established
#- A genuine mistake by counsel is a sufficient basis for extension of time regardless of how the mistake arises or the experience of counsel.
Court orders
#- 1.The applicants to file their Notice of Appeal within 7 days from the date of the order
- 2.The applicants to file the record of appeal within 14 days from the date of filing the Notice of Appeal
- 3.Costs of the application to 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
- Ruling by Githinji J. dated 22nd June, 1998
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of 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.
A mistake is a mistake. It is no less a mistake because it is an unfortunate slip.
The door of justice is not closed because a mistake has been made by a person of experience who ought to have known better.
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
#The judgment refers to counsel for the applicants inconsistently as Mr. Satish Gautama and Mr. Kamara, and to counsel's name as both Rodrigues and Roedrigue.
The judgment states the appeal was struck out on 3rd May, 1999 but that the present application was filed immediately on 17th March, 1999, an apparent chronological inconsistency.
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 306 (KLR)", Case Analysis (2000). Civil Application (Notice of Motion filed 17th March, 1999). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/306/eng@2000-03-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.