Jacob Mwangi H. Murira John Wambugu Hadad (as Administrators of The Estate of The Late Hadad Murira Karukwa & Waweru Karukwa) v John Mwage Kariuki

The applicant learned of the judgment on 24th June 1998, was told by his advocate to pay his fees and take the file elsewhere, collected the file on 10th July 1998 and handed it to new advocates with instructions to lodge and prosecute the intended appeal. The application was lodged on 31st July 1998. The court found no inordinate delay and held the application was filed with due despatch.

The respondent's sole objection was that Mr Maini ought to have lodged a notice of appeal even without instructions, relying on two rulings of Kwach JA whose ratio was that an advocate needs no instructions to lodge a notice of appeal costing Shs.450/= in court fees. Shah JA held that neither case involved delay by the court below so extreme as to make counsel give up, and that the applicant, who acted promptly on learning of the judgment, should not be punished for his advocate's reluctance.

The factor that weighed with the court was the inexcusable delay of nearly two years in the delivery of judgment by the superior court, which probably caused the advocate to abandon the matter. Balancing that against the respondent's objection, and applying the principle that each case turns on its own facts, the single Judge of Appeal exercised his discretion in favour of the applicants and granted the extension on terms as to time.