WARUHIU K’OWADE & NG’ANG’A ADVOCATES (A FIRM) v MUTUNE INVESTMENTS LIMITED [2009] KECA 254 (KLR)
The bottom line
#The Court of Appeal allowed a law firm's late appeal, finding they never received notice of the High Court judgment and acted promptly once they learned of it.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants should be granted extension of time to enable their notice of appeal to be deemed properly lodged and served
- 2.Whether the applicants received notice of the delivery of the High Court judgment and when they came to know of it
- 3.Whether the intended appeal, if time were extended, would be successful (arguable grounds)
Key legal issues
#Receipt of notice of judgment
Where notice of delivery of judgment was sent to the correct address but the applicant's counsel depones it was never received, and the respondent's assertion of receipt is mere presumption, the court may find the applicant did not in fact receive the notice.
The Deputy Registrar used the correct address supplied by the applicants, but the only direct evidence on actual receipt was counsel's affidavit. The opposing counsel could only presume receipt. The respondent's advocates, though present when judgment was delivered and aware of the applicants' absence, did not inform them of the judgment until service of a taxation notice. The court therefore held the applicants only learned of the judgment on 9th July 2008 and acted promptly thereafter.
Discretion to extend time
Prompt action after learning of the judgment, coupled with an arguable appeal, justifies exercise of discretion to extend time even where the applicant has not disclosed an application for proceedings and judgment, if that omission was not raised as an issue before the court.
The applicants filed a notice of appeal two days after learning of the judgment and the motion nine days later. Although the applicants failed to state whether they had applied for proceedings and judgment under rule 81 of the Court's rules, that omission was not raised as an issue by the respondent, so the judge declined to use it as a basis for refusing the discretion.
Legal principles established
#- In an extension-of-time application, the applicant's prompt conduct upon learning of the judgment is a weighty factor in favour of exercising discretion in their favour.
Court orders
#- 1.The notice of appeal lodged in Court on 14th July, 2008 is deemed to have been lodged and served within the prescribed period
- 2.The record of appeal shall be filed within twenty-one days of the date of the order and served within a further seven days from the date on which it is lodged
- 3.The applicant shall pay the costs of the motion in any event
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi (Milimani)
- Not stated in the judgment
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time)
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.
I am prepared to hold, as I hereby do, that the applicants did not in fact receive the notice for the delivery of the judgment and that they only came to know about the judgment on 9th July, 2008 when they were served with the notice for taxation.
Weighing one thing against the other, I am satisfied this is a proper case in which I ought to exercise my discretion in favour of the applicants.
(i) the notice of appeal lodged in Court on 14th July, 2008 is deemed to have been lodged and served within the prescribed period.
Issues in the judgment
#The judgment is dated and delivered on 3rd July 2009 but the introductory narrative describes an intended appeal, while the final orders deem a notice of appeal already lodged on 14th July 2008 to be validly filed; the relationship between the contemplated appeal and the deemed notice is not fully reconciled on the face of the text.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "WARUHIU K’OWADE & NG’ANG’A ADVOCATES (A FIRM) v MUTUNE INVESTMENTS LIMITED [2009] KECA 254 (KLR)", Case Analysis (2009). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/254/eng@2009-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.