Peter Simon Opiyo v Madison Insurance Company Limited [2002] KECA 149 (KLR)
The bottom line
#Kenya's Court of Appeal extended time to appeal despite lawyer's delays, ruling a client shouldn't lose their appeal over their advocate's mistakes.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether to extend time for the applicant to lodge his record of appeal out of time.
- 2.Whether the applicant should be made to suffer for the errors and slips of his advocate.
- 3.Whether an intending appellant needs a certified copy of the judgment for inclusion in the record of appeal.
- 4.Whether a certificate of delay is necessary where requisite copies are applied for but are not available until after the time for lodging the appeal has expired.
- 5.Whether the intended appeal is frivolous and whether the application was lodged without undue delay.
Key legal issues
#Whether a certified copy of the judgment is required for the record of appeal.
No. A certified copy of the judgment or order appealed against is not necessary for inclusion in the record of appeal; an intending appellant does not need it, and applying for one out of habit causes unnecessary delay.
The judge noted that the applicant's advocates bespake a certified judgment on 28th November 2000 and then waited for its certification before moving. He observed that the Court has repeatedly stated that such certified copies are unnecessary, and counsel for the applicant conceded the request was made erroneously. The unnecessary wait for certification was the very source of the delay, and it coloured the quality of the explanation offered for not lodging the appeal in time.
Whether a certificate of delay is necessary to obtain the benefit of the proviso to rule 81(1).
Yes. Where requisite copies are applied for and are not available until after the time to lodge the appeal expires, a certificate of delay is certainly necessary; otherwise the intending appellant does not have the benefit of the proviso to rule 81(1).
Counsel for the respondent argued that the applicant's advocates did not need a certificate of delay to lodge the appeal. The judge rejected that submission, holding that the certificate becomes necessary precisely where copies applied for are not supplied before the period for lodging the record runs out. Without it, the intending appellant cannot rely on the proviso to rule 81(1) to justify the delay.
Whether a litigant should be deprived of the right of appeal for the errors and slips of his advocate.
No, where the litigant is probably an innocent bystander. The court may grant the extension in the interests of justice, but may attach conditions such as payment of the respondent's costs of the application.
The judge identified the central problem as whether to let the applicant suffer for his advocate's errors. Finding the applicant probably unaware of the bungling and genuinely desiring to appeal, he balanced the advocates' laxity against the applicant's right of appeal and exercised an 'almost unfettered discretion' to allow the application, conditioning the grant on payment of assessed costs so that the respondent was not left out of pocket.
Whether the intended appeal is frivolous and whether the application was brought without undue delay.
The intended appeal is not frivolous, and the application lodged on 11th May 2001 was made without undue delay; the earlier delay was explained in a bungling way, the advocates having awaited a certified copy of the judgment.
The judge perused the judgment, which counsel had failed to exhibit to the supporting affidavit - a slip the judge cured by allowing it to be handed over over the respondent's objection - and was not able to say the intended appeal was frivolous. He found the application was lodged without undue delay, while the earlier delay was explained in a bungling way attributable to the advocates' wait for certification.
Legal principles established
#- An intending appellant does not need a certified copy of the judgment or order appealed against for inclusion in the record of appeal; persisting in seeking such copies is a recurring and unnecessary cause of delay.
- Where requisite copies are applied for and are not available until after the time to lodge the appeal expires, a certificate of delay is necessary; without it the intending appellant does not have the benefit of the proviso to rule 81(1).
- A litigant who is probably an innocent bystander to his advocate's laxity should not be deprived of the right of appeal on that account; the extension discretion is exercised in the interests of justice and may be granted on conditions, including payment of the respondent's costs.
Court orders
#- 1.The applicant to lodge his record of appeal within the next 30 days.
- 2.The applicant to pay costs of the application, assessed at Shs.12,000/=, to the respondent within the next 20 days.
- 3.In default of such payment, the record of appeal to be rejected by the Registry of the Court.
- 4.The applicant directed to include in his record of appeal the receipt for the Shs.12,000/- costs as well as a copy of the ruling.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court (referred to in the ruling as 'the superior court')
- Jurisdiction invoked
- Discretionary jurisdiction of the Court of Appeal to extend time for lodging a record of appeal out of time, assessed against the proviso to rule 81(1) of the Court of Appeal Rules; the ruling does not cite the specific rule under which the application itself was brought.
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.
The orders that I make are that (1) the applicant do lodge his record of appeal within the next 30 days and (2) that the applicant do pay costs in the sum of Shs,12,000/= to the respondent within the next 20 days and that (3) in default of such payment the record of appeal be rejected by the Registry of this Court.
This Court has pointed out on several occasions that an intending appellant does not need such (certified) copies for inclusion in the record of appeal.
If requisite copies are applied for and are not available until after the time to lodge the appeal expires, a certificate of delay is certainly necessary. Otherwise the intending appellant does not have the benefit of the proviso to rule 81(1).
I do not wish to deprive the applicant of his right of appeal by refusing to grant this application as he himself is quite probably an innocent by-stander hoping that his appeal would be lodged in time.
in the interests of justice and in the exercise of the almost unfettered discretion that I have in considering an application of this nature, I allow this application but on condition that the applicant will pay costs of this application to the respondent which costs I assess at Shs.12,000/=.
I am not able to say that the intended appeal is frivolous.
Issues in the judgment
#The ruling nowhere names the parties or the appeal/application case number; the brief records these as not stated rather than inventing them.
The costs figure is printed inconsistently within the ruling - 'Shs.12,000/=' in the condition and 'Shs,12,000/=' (comma for full stop) in the orders.
Internal date discrepancy: the court fixes 21st March 2001 as the date requisite copies were available, while the respondent's argument refers to a delay running from 24th March 2001.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Simon Opiyo v Madison Insurance Company Limited [2002] KECA 149 (KLR)", Case Analysis (2002). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/149/eng@2002-03-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.