Fred M. O. & 2 others v Sarah Achieng Sellasie [2005] KECA 15 (KLR)
The bottom line
#Kenya's Court of Appeal gave defendants 2.5 extra years of delay to appeal, ruling that a lawyer's mistakes shouldn't punish the client.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay of over 2½ years in filing the record of appeal was adequately explained
The delay was sufficiently explained; the larger part was attributable to the court and to the respondent's counsel's non-cooperation, and counsel's lapses should not be visited on the litigants.
The court accepted that the applicants applied in good time for proceedings and that these were not ready until 6 December 2004. The remaining 8 months were attributed to an advocate's clerical oversight, the failure of the Deputy Registrar to supply a certified decree, the respondent's counsel refusing to co-operate on the decree and court fees, and the time taken to raise fees. Primary documents (exhibits and decree) were necessary for a competent appeal. Counsel's blame was atonable in costs.
Whether exhibits and the decree are necessary primary documents for a competent appeal
Yes - exhibits produced at trial and the decree are primary documents without which the appeal would be incompetent; the applicants were entitled to await them.
Relying on Commercial Bank of Africa v Ndirangu, the court held that exhibits produced in the course of hearing would be necessary for determination of the appeal and were thus primary documents; the decree was likewise primary. Rejecting the respondent's argument that exhibits could go into a supplementary record, the court found the applicants' pursuit of these documents a reasonable explanation for much of the delay, compounded by the respondent's counsel's refusal to assist in obtaining the decree.
Legal principles established
#- The discretion under Rule 4 is unfettered but must be exercised upon reason, on relevant factors including the period of and reason for delay, chances of appeal success, and prejudice to the respondent.
Court orders
#- 1.Extension of time granted for filing the memorandum of appeal and record of appeal
- 2.The memorandum of appeal and the record of appeal to be filed and served within 14 days of the date of the ruling
- 3.Costs of the application to be borne by the applicants
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fred M. O. & 2 others v Sarah Achieng Sellasie [2005] KECA 15 (KLR)", Case Analysis (2005). Civil Application (not stated on the face of the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/15/eng@2005-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.