John Terer & 2 Others v John Mbaraka & 2 Others [2010] KECA 411 (KLR)
The bottom line
#Kenya's Court of Appeal excused a lawyer's mistake over signing and serving a notice of appeal, extending time but ordering the appealing party to pay costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the erroneous belief that a notice of appeal must be signed by the Deputy Registrar before service constitutes an excusable mistake of counsel
Yes. The court held the blunder on the issue of law relating to signature before service may readily be excused, applying Murai v Wainaina (No. 4) and its own earlier decision in Shital Bimal Shah v Akiba Bank Limited.
The notice was filed timeously but counsel wrongly believed it had to be signed by the Deputy Registrar before service. Rule 76(1) permits service before or within seven days after lodging, without the Registrar's signature. Madan, JA's pronouncement in Gulamhusen Cassam and Murai v Wainaina establishes that an error of judgment or blunder by counsel is a mistake that the court may rectify in the interests of justice, and that the door of justice is not closed because an experienced person erred.
Whether the delay in filing the application for extension of time should be excused
Yes, on the special circumstances of the case: the subject matter was school land in the respondents' possession, proceedings and judgment had not been supplied, and the respondents knew the applicants intended to pursue the appeal. Costs were imposed to atone for the delay.
Although the delay in filing the application would ordinarily have been difficult to excuse, the court considered special circumstances: the respondents were in possession of the disputed school land and suffered only delay in realizing the fruits of their judgment; certified proceedings had not been supplied; and the respondents knew all along of the applicants' intention to appeal. The court balanced these against the transgressions and compensated the respondents by an award of thrown-away costs.
Effect of Sections 3A and 3B of the Appellate Jurisdiction Act on the exercise of the Rule 4 discretion
The overriding objective gives the Court considerable latitude, enriching but not uprooting established principles and precedent in the exercise of judicial discretion.
Parliament enacted Sections 3A and 3B to provide an overriding objective of just, expeditious, proportionate and affordable resolution of appeals. In City Chemist v Oriental Commercial Bank the Court held these provisions enrich established principles and embolden the Court to be guided by a broad sense of justice and fairness, without uprooting precedent, since the exercise of discretion is a judicial process devoid of whim and caprice.
Legal principles established
#- A notice of appeal need not be signed by the Deputy Registrar or Registrar before it is served; it may be served before or within seven days after lodging.
- The factors for considering a Rule 4 extension-of-time application are not exhaustive; the Court's overriding concern is to do justice between the parties.
- Mistakes of counsel may be excused where the interests of justice so dictate; a blunder on a point of law can be a mistake warranting rectification.
Court orders
#- 1.Extension of time within which the notice of appeal lodged in the High Court of Kenya at Kericho on 12th May, 2009 may be served
- 2.The notice of appeal served on the respondents on 12th June, 2009 deemed to have been served within time and declared a valid notice
- 3.Applicants to bear all costs thrown away, assessed at Kshs.20,000/=, payable to the respondents within 14 days of the ruling, failing which execution for that sum with interest at court rates shall ensue
- On appeal from
- High Court of Kenya
- Not stated
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules, together with Sections 3A and 3B of the Appellate Jurisdiction Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Terer & 2 Others v John Mbaraka & 2 Others [2010] KECA 411 (KLR)", Case Analysis (2010). Not stated in the judgment (application dated 24th August, 2009; filed 26th August, 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/411/eng@2010-02-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.