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Court of AppealDismissedCivil Application No. Nai. 242 of 1999 (UR.95/99)· [2000] KECA 351 (KLR)

Kiu Ranching & Farming Co-operative Society Limited v Kisee Mweu &19; others [2000] KECA 351 (KLR)

Court of Appeal of Kenya

13 October 2000

JGJ. E. Gicheru

556 words in judgment

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The bottom line

Kenya's Court of Appeal refused to revive a land appeal filed nearly five years late, ruling that blaming your lawyer does not excuse a client's own inaction.

What this practically means

Executive summary

This is a single-judge (in chambers) ruling of the Court of Appeal at Nairobi by Gicheru, J.A., on a Notice of Motion dated 2nd September 1999 seeking extension of time to lodge a Notice and Record of Appeal against the judgment of Mwera, J. in H.C.C.C. No. 2749 of 1981 delivered on 14th January 1992. The applicant's earlier appeal, Civil Appeal No. 17 of 1993, had been struck out on 7th February 1995 for incompetence because a certified copy of the decree was not part of the record. The application came nearly five years after that striking out. The applicant attributed the delay to its former counsel, who allegedly misrepresented that an appeal had been lodged; the applicant discovered the truth in May 1999 and retrieved its files in July 1999. The respondents opposed, noting that the decree had been executed, the subject land (LR No. 7612) subdivided into LR No. 7612/1 and LR No. 7612/2 and transferred to the applicant and respondents respectively, and that litigation begun in 1981 should end. The court held the delay of 4 years and 8 months intolerably inordinate and unexplained, that counsel's failure was no excuse for the applicant's near inactivity, and declined to exercise its discretion under rule 4 of the Court of Appeal Rules. The application was dismissed with costs to the respondents.

Key legal issues

Whether extension of time should be granted under rule 4 of the Court of Appeal Rules

Holding

The application was refused because the delay of 4 years and 8 months was inordinate and without sufficient explanation, and the applicant had shown no aggressiveness in pursuing its intended appeal.

Reasoning

The court weighed the length and explanation for the delay. The applicant blamed former counsel, but the court held that counsel's failure does not excuse the client's own near inactivity. Meanwhile the subject land (LR No. 7612) had been subdivided and transferred to the parties respectively, and the litigation dating from 1981 needed closure. The discretion under rule 4 was therefore declined.

p. 2

Effect of intervening execution and transfer of the subject-matter on an application for extension of time

Holding

The subdivision of LR No. 7612 and its transfer to the applicant and respondents respectively, together with the age of the litigation, weighed against extending time.

Reasoning

The respondent showed that after the appeal was struck out, the superior court dealt with the subject land, which was subdivided into LR No. 7612/1 and LR No. 7612/2 and registered in the parties' names. Execution had been effected and litigation begun in 1981 ought to be brought to a close, making extension of time unjust.

p. 2

Legal principles established

Failure by a litigant's counsel to set in motion steps for lodging an appeal does not excuse the litigant's own inactivity in pursuing the appeal, and inordinate unexplained delay disentitles the litigant to an extension of time under rule 4.

Court orders

1.The applicant's application for extension of time within which to file a Notice and Record of Appeal is dismissed
2.Costs of the application awarded to the respondents

Authorities

Legislation

Court of Appeal Rulesrule 4

On appeal from: High Court of Kenya at Nairobi; H.C.C.C. No. 2749 of 1981
Jurisdiction invoked: Rule 4 of the Court of Appeal Rules (discretion to extend time)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Kiu Ranching & Farming Co-operative Society Limited v Kisee Mweu &19; others [2000] KECA 351 (KLR)", Case Analysis (2000). Civil Application No. Nai. 242 of 1999 (UR.95/99). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/351/eng@2000-10-13

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