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Court of AppealAllowedCivil Application (not stated on the face of the judgment)· [2005] KECA 15 (KLR)

Fred M. O. & 2 others v Sarah Achieng Sellasie [2005] KECA 15 (KLR)

Court of Appeal of Kenya
8 November 2005
1,854 words in judgment
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The bottom line

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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

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi, delivered by Waki JA on 8 November 2005, on an application under Rule 4 of the Court of Appeal Rules for extension of time to file a record of appeal. The applicants, defendants below, had been ordered on 23 October 2002 to pay the respondent Shs.7,419,741 for injuries suffered in a road traffic accident. They filed a notice of appeal on 1 November 2002 but the record of appeal was not filed until an application lodged on 27 July 2005, a delay of about 2 years 8 months. The court restated the well-established Rule 4 principles: although the discretion is unfettered, it must be exercised on reason and not caprice, considering factors such as the period of and reason for delay, the chances of the appeal succeeding, and prejudice to the respondent. The court accepted that the applicants had applied timeously for proceedings, which were not ready until 6 December 2004, and that exhibits and the decree were primary documents without which the appeal would be incompetent. The remaining unexplained period was attributed to counsel's oversight, court processes, and the respondent's counsel's refusal to co-operate over the decree and court fees, matters atonable in costs and not to be visited on the litigants. Noting that the intended appeal challenging the damages award was not frivolous and that Shs.4 million had already been released to the respondent with the balance in escrow, the court granted the application, directing that the memorandum and record of appeal be filed and served within 14 days, with costs of the application borne by the applicants.

Key legal issues

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01

Whether the delay of over 2½ years in filing the record of appeal was adequately explained

Holding

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.

Reasoning

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.

p. 4
02

Whether exhibits and the decree are necessary primary documents for a competent appeal

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Extension of time granted for filing the memorandum of appeal and record of appeal
  2. 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. 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

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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, "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.