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Court of AppealAllowedCivil Application No. NAI. 141 of 2002 (Nyr 14/2002)· [2002] KECA 323 (KLR)

Ephantus Wanjohi Ruhara v Eunice Wanjiku Ruhara & 6 Others

Court of Appeal
30 October 2002
SBS.E.O. Bosire
402 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed a litigant whose appeal was struck out to restart it, because his lawyer's excusable mistake caused the delay.

What this practically means

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Executive summary

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This is a single-judge (in-chambers) ruling of the Court of Appeal at Nyeri by Bosire, J.A on an application under rule 4 of the Court of Appeal Rules for extension of time to file a fresh notice and record of appeal. The applicant's earlier appeal, arising from a ruling of the High Court at Nyeri (Abdullah, J), had been struck out as incompetent. The respondents, through counsel Mr. Okeyo, opposed the extension on the ground that the litigation dated back to 1985 and should be brought to an end. The court agreed that finality of litigation is a legitimate consideration in an appropriate case, but held that where the delay arose from an excusable mistake of counsel for the applicant, and where the applicant acted promptly in bringing the motion after the striking out, the discretion under rule 4 should be exercised in favour of the applicant. The court extended time by seven days for filing a fresh notice of appeal and a further thirty days for lodging the record of appeal. Costs of the motion were awarded to the respondents against the applicant, assessed at Kshs. 7,000/=, payable within five days, failing which the motion would be deemed dismissed with costs. The ruling confirms that a party whose appeal has been struck out as incompetent may restart the appellate process.

Key legal issues

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01

Whether extension of time should be granted where delay stems from counsel's excusable mistake and the litigation is old

Holding

Extension granted; excusable mistake of counsel and the applicant's promptitude in moving after the striking out outweighed the respondents' argument that litigation should come to an end.

Reasoning

The court accepted that litigation should end in an appropriate case, but held the delay here was attributable to an excusable mistake of counsel for the applicant. The applicant also acted promptly in filing the motion once his appeal was struck out. Those factors justified exercising the rule 4 discretion in his favour despite the 1985 vintage of the decision.

p. 2

Legal principles established

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  • A party whose appeal has been struck out as incompetent may restart the appellate process by seeking an extension of time under rule 4.
  • Delay caused by an excusable mistake of counsel, coupled with the applicant's promptitude, justifies extension of time notwithstanding the age of the litigation.

Court orders

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  1. 1.Extension of time for filing a fresh notice of appeal by seven (7) days from the date of the ruling
  2. 2.Further extension of thirty (30) days thereafter for lodging the record of appeal
  3. 3.Applicant to bear the costs of the motion assessed at Kshs. 7,000/=, payable within five days, failing which the motion is deemed dismissed with costs

Authorities

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Legislation

  • Court of Appeal Rulesrule 4
On appeal from
High Court of Kenya at Nyeri
H.C.C.C. No. 174 of 1985
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules

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, "Ephantus Wanjohi Ruhara v Eunice Wanjiku Ruhara & 6 Others", Case Analysis (2002). Civil Application No. NAI. 141 of 2002 (Nyr 14/2002). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/323/eng@2002-10-30

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