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Court of AppealDismissedCivil Application 266 of 2005· [2006] KECA 288 (KLR)

Samwel Ondieki v Samwel Mageto

Court of Appeal
31 March 2006
PWP.N. Waki
1,412 words in judgment
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The bottom line

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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 Kisumu (Waki, JA) on an application under rule 4 of the Court of Appeal Rules for extension of time to file and serve a notice of appeal and lodge a record of appeal out of time, directed at a High Court judgment of 12 June 2002 (Birech, C.A.) in H.C.C.C. No. 485 of 1994. The applicant instructed advocates to appeal on 10 July 2002 but discovered only in May 2005 that no appeal had been filed, then waited a further four months before filing the application. The court reaffirmed that the rule 4 discretion is unfettered but cannot be exercised on whim or caprice, applying the well-established factors: length of and reason for delay, chances of the appeal succeeding, prejudice to the respondent, and compliance with time limits. It held that total inaction by counsel, unlike explained mistakes or negligence, is not excusable, and that the client's remedy may lie against the advocate. A plea of poverty was rejected because rule 112 provides relief for indigent litigants. No affidavit from the advocate or explanatory material was offered, so the burden on the defaulting party was not discharged. The delay was found inordinate, the prospects of appeal unweighed, and the respondent's hallowed right to enjoy the fruits of judgment prejudiced. The application was dismissed with no order as to costs.

Key legal issues

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01

Whether the delay of approximately four years was excusable

Holding

The delay was inordinate and unexplained; total inaction by counsel and the applicant's own further four-month delay were not excusable.

Reasoning

The applicant gave no explanation for failing to follow up with his advocates between July 2002 and May 2005, nor for the further four months before filing the application. No affidavit from the advocate was filed. Explained mistakes of counsel may be pardoned, but total inaction is not, and poverty is no excuse given rule 112.

p. 2
02

Whether the chances of the appeal succeeding justified extension

Holding

No material was placed before the court to weigh the chances of success; the factor carried little weight.

Reasoning

Counsel sought to disclose grounds of appeal only if extension was granted, which the court described as putting the cart before the horse. Only four grounds of appeal were before the court, whose seriousness could be assessed only from counsel's view, so the factor was not given considerable weight.

p. 3
03

Prejudice to the respondent

Holding

The respondent held a judgment unchallenged for four years; extension would prejudice his enjoyment of the fruits of judgment.

Reasoning

A judgment in favour of the respondent had stood since June 2002. The court held that the right to enjoy the fruits of judgment is as hallowed as the right of appeal, and breach of either for no good reason is prejudicial. This factor weighed against the grant.

p. 3

Legal principles established

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  • The discretion under rule 4 is unfettered but must not be exercised on whim or caprice; relevant factors include delay, reasons, chances of appeal, prejudice, and compliance with time limits.
  • Total inaction by an advocate is not excusable, unlike explained mistakes or negligence; the client's recourse may lie against the advocate.
  • Poverty is not an excuse for failure to comply with the rules of court; rule 112 provides relief for indigent litigants.
  • Once a party is in default, the burden is on them to place material before the court justifying exercise of the discretion in their favour.
  • The right to enjoy the fruits of judgment is as hallowed as the right of appeal.

Court orders

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  1. 1.Application for extension of time dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 112

Cases cited (7)

  • Fakir Mohammed vs Joseph Mugambi & 2 Others
    Civil Application No. Nai. 332/04 (Nyr. 32/04 UR)

    Enumerating the relevant but non-exhaustive factors for extension of time under rule 4.

  • Mutiso vs Mwangi
    Civil Appl. No. Nai. 255 of 1997 (UR)

    Factors for extension of time.

  • Mwangi vs Kenya Airways Ltd
    [2003] KLR 486

    Factors for extension of time.

  • Major Joseph Mwereri Igweta vs Murika M’Ethare & Attorney General
    Civil Appl. No. Nai. 8/2000 (UR)

    Factors for extension of time.

  • Murai vs Wainaina (No.4)
    [1982] KLR 38

    Factors for extension of time.

  • First American Bank of Kenya Ltd & Anor vs Grandways Venture Ltd
    Civil Appl. No. Nai. 173/9 (UR)

    Defaulting party bears the burden of placing material before the court to justify extension.

  • Savill v Southend Health Authority
    [1995] 1 WLR 1254

    There must be material on which the court can exercise its discretion; otherwise breach would confer an unqualified right to extension.

On appeal from
High Court of Kenya at Kisumu
H.C.C.C. No. 485 of 1994
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time discretion)

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, "Samwel Ondieki v Samwel Mageto", Case Analysis (2006). Civil Application 266 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/288/eng@2006-03-31

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