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Court of AppealAllowedNot stated in the judgment

Samuel Mugo Karanja v Chiriro Ndereba Njiri [2001] KECA 126 (KLR)

Court of Appeal of Kenya
4 April 2001
742 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal allowed a late appeal record, clarifying that only the decree or order appealed against needs certification, not full proceedings.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi (Shah JA) on an application by Samuel Mugo Karanja for leave to file his record of appeal out of time, brought under rules 4 and 42(2) of the Court of Appeal Rules. The underlying dispute concerned L.R. No. 36/II/126, of which the applicant was registered proprietor. On 10th May 2000 the superior court (Commissioner of Assize P.J. Ransley), in consolidated suits H.C.C.C. No. 1344 of 1999 and H.C.C.C. No. 1405 of 1999, declared the respondent owner of the property by adverse possession and ordered its transfer to him. The applicant filed notice of appeal in time on 15th May 2000 and his advocates applied for certified copies of the proceedings and judgment by letter of 18th May 2000, but the copies were only made available on 18th August 2000. Time under the proviso to rule 81(1) expired on 14th July 2000, and on learning that the copy of the bespeaking letter had not reached the respondent's advocates, the applicant filed this application on 14th September 2000. Shah JA held that the delay of less than a month was not inordinate; accepted counsel's concession that the respondent, being in possession of the suit land, would suffer no prejudice; and held that the applicant ought not to suffer for the mistakes or inaction of his advocate. The application was allowed, the record of appeal to be lodged within 30 days, with costs of Shs.10,000/= awarded to the respondent, payable within 30 days failing which execution may issue. The court also warned that certified copies of proceedings and judgment are unnecessary to mount an appeal, only the order or decree appealed against requiring certification, and directed advocates to three unreported rulings. The High Court judgment was not disturbed.

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 lodge his record of appeal out of time.
  2. 2.Whether the delay of less than one month in lodging the application was so inordinate as to disentitle the applicant.
  3. 3.Whether certified copies of proceedings and judgment are needed to mount an appeal.
  4. 4.Whether the respondent would suffer prejudice if the record of appeal were filed out of time.
  5. 5.Who should bear the costs of the application.

Key legal issues

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01

Whether the delay of less than one month in lodging the application for extension of time was inordinate.

Holding

No. A delay of less than a month in lodging the extension application was not so inordinate as to disentitle the applicant from lodging his appeal, and extension of time was granted.

Reasoning

The applicant's notice of appeal was filed in good time on 15th May 2000 and his advocates applied for certified copies on 18th May 2000. The copies were only made available on 18th August 2000, and on or about 5th September 2000 the applicant learnt that the copy of the bespeaking letter had not reached the respondent's advocates, costing him the benefit of the proviso to rule 81(1). The court held his choice to apply for extension rather than lodge a record was the right decision and the under-one-month delay was not inordinate.

p. 2
02

Whether certified copies of proceedings and judgment are required to mount an appeal.

Holding

No. Only the order or decree appealed against needs to be certified; certified copies of proceedings and judgment are unnecessary, and advocates should disabuse themselves of the contrary notion.

Reasoning

The court took the opportunity, as its first point, to correct a habitual practice among advocates of applying for certified copies of proceedings and judgment despite the clear provision of the Rules. It described the practice as a notion to be disabused, issued a warning, and directed advocates to three unreported rulings of the Court. The pronouncement was not necessary to the disposal of the extension application and is best treated as a deliberate practice directive rather than the ratio.

p. 1
03

Whether the applicant should be made to suffer for the mistakes or inaction of his advocate.

Holding

No. The applicant ought not to suffer for the mistakes or inaction of his advocate; this weighed in favour of allowing the extension.

Reasoning

The applicant himself had acted diligently: his notice of appeal was filed in time and the letter bespeaking copies went out promptly on 18th May 2000, ex facie copied to the respondent's advocates. The failure was the non-receipt of that copy by the respondent's advocates, which deprived the applicant of the benefit of the proviso to rule 81(1). The court treated the advocate's inaction as a factor that should not defeat the applicant's right to appeal.

p. 2
04

Whether the respondent would suffer prejudice if the record of appeal were filed out of time.

Holding

No. Respondent's counsel conceded, and the court accepted, that no prejudice would be suffered because the respondent is in possession of the suit land.

Reasoning

Mr. Gikonyo conceded that his client would suffer no prejudice if the record were filed out of time since his client was already in possession of the suit property, and the court considered the concession very correctly made. Together with the adverse-possession character of the order under appeal, the absence of prejudice was a decisive factor in allowing the extension, with costs of the application nonetheless awarded to the respondent.

p. 2

Legal principles established

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  • To mount an appeal, a litigant does not need certified copies of the proceedings and judgment; the only document that must be certified is the order or decree appealed against.
  • A delay of less than a month in lodging an application for extension of time is not, without more, so inordinate as to disentitle an applicant from lodging his appeal.
  • A litigant ought not to be made to suffer for the mistakes or inaction of his advocate.

Court orders

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  1. 1.The application is allowed and the record of appeal is to be lodged within the next 30 days.
  2. 2.The applicant to pay the respondent's costs of the application, assessed at Shs.10,000/=, payable within the next 30 days, failing which execution may issue.

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 (the superior court)
H.C.C.C. No. 1344 of 1999 and H.C.C.C. No. 1405 of 1999 (consolidated)
Jurisdiction invoked
Rules 4 and 42(2) of the Court of Appeal Rules (the Rules of this Court), a single-judge application for extension of time; the proviso to rule 81(1) governing the time for lodging the record of appeal was also engaged.

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.

I allow this application and order that the record of appeal be lodged within the next 30 days. The applicant will however pay the costs of this application to the respondent which costs I assess at Shs.10,000/=
p. 2Final orders - extension granted with costs of the application to the respondent
there is no need for certified copies of proceedings and judgment to mount an appeal. The only document that needs to be certified is the order or decree appealed against.
p. 1Certified copies not required to mount an appeal
I do not think the delay of less than a month in lodging this application is so inordinate as to disentitle the applicant to lodge his appeal.
p. 2What constitutes inordinate delay
Considering all factors advanced before me, also considering the fact that the matter in issue is an adverse possession order and also the fact that the applicant ought not to suffer for the mistakes or inaction of his advocate I allow this application
p. 2Factors for extension of time - adverse possession order and advocate's mistakes
Mr. Gikonyo conceded, and I think very correctly, that his client will suffer no prejudice if the record of appeal is allowed to be filed out of time, as his client is in possession of the suit land.
p. 2Absence of prejudice to the respondent

Issues in the judgment

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minor

The passage citing the first authority is corrupted: two texts are interleaved. De-interleaving recovers the sentence 'I would ask the advocates to peruse the rulings in:' and the case name '(1) Daima Bank Limited & another vs. K.H. Osmond'.

minor

The respondent is never named in the judgment; it is identified only as 'the respondent' and through its advocates, M/S J. Ngaii Gikonyo & Company.

minor

The case number of this application is not stated anywhere in the judgment.

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, "Samuel Mugo Karanja v Chiriro Ndereba Njiri [2001] KECA 126 (KLR)", Case Analysis (2001). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/126/eng@2001-04-04

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