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Court of AppealDismissedCivil Application (extension of time application under Notice of Motion dated 11th July 2014)· [2014] KECA 282 (KLR)

Lingam Enterprises Limited & 4 other v Radio Africa Limited [2014] KECA 282 (KLR)

Court of Appeal of Kenya
7 November 2014
WKW. Karanja
1,639 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to forgive a four-year filing delay, ruling that blame for a lawyer's inaction falls on the client, not the court.

What this practically means

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Executive summary

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The applicants, whose defence in a High Court suit by Radio Africa Limited was struck out by Kimaru, J on 10th December 2009, filed a notice of appeal on 5th May 2010 after their application to set aside the ruling was dismissed on 29th April 2010. They obtained a stay of execution under Rule 5(2)(b) on 3rd February 2012, but did not file the memorandum and record of appeal. By Notice of Motion dated 11th July 2014 they sought an extension of time, blaming the court for failing to respond to their letters requesting proceedings. Before the application was heard, the applicants' advocate, Ms Milly J. Odari, deposed that her firm bore no blame. The Court of Appeal (Karanja, JA) applied the settled tests for extension of time, including those in Fakir Mohamed v Joseph Mugambi & 2 Others. The court found the proceedings had been collected from the court by the applicants' recognised agent on 29th August 2012 and signed for, but nothing was done until counsel was served with a pending application to strike out the notice of appeal. The delay was inordinate and unexplained; the applicants failed the first two tests, making it unnecessary to consider arguability or prejudice. The court held that extension of time is a discretionary remedy to be judicially exercised, requiring diligence and good faith, and that blame for counsel's bad housekeeping cannot be shifted to the court. The application was dismissed with costs to the respondents.

Key legal issues

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01

Factors for extension of time under the Court's discretion

Holding

The applicant must satisfy the established tests: whether the delay is inordinate, whether it is explained to the court's satisfaction, whether the respondent suffers prejudice, and whether the intended appeal is arguable; the list is not exhaustive.

Reasoning

The court applied the settled principles from Fakir Mohamed v Joseph Mugambi & 2 Others, assessing the applicants against the tests. The record showed proceedings were collected by the applicants' recognised agent on 29th August 2012 and not acted upon, and that the firm exonerated itself on oath while blaming the court. Failing the first two tests made it unnecessary to consider the remaining factors.

p. 3
02

Whether the court could be blamed for non-response to letters requesting proceedings

Holding

No. Counsel's recognised agent had collected and signed for the proceedings; the delay in filing was caused by counsel's own failure, not the court's silence.

Reasoning

Ms Odari deposed that her firm's failure to file in time was not attributable to the applicants and blamed the court for not responding to reminders. The court found the proceedings had been collected by the firm's clerk on 29th August 2012, and that counsel's certificate of delay showed awareness of receipt by 16th January 2013. Blame therefore lay with counsel's bad housekeeping.

p. 3

Legal principles established

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  • A party seeking a discretionary extension of time must demonstrate diligence and good faith, and bear responsibility for the acts of its own advocate and agents.
  • Delay caused by an advocate's or agent's failure cannot be attributed to the court and does not justify extension of time.

Court orders

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  1. 1.Dismissal of the Notice of Motion dated 11th July 2014 seeking extension of time to file and serve the memorandum and record of appeal
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Constitution of Kenya 2010Article 47
  • Constitution of Kenya 2010Article 159(2)
  • Civil Procedure Rules (since repealed)Order VI Rule 13(1)(b), (c) and (d)
  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 82

Cases cited (1)

  • Fakir Mohamed v Joseph Mugambi & 2 Others
    Civil Application No. Nai 332 of 2004
On appeal from
High Court of Kenya, Milimani
Jurisdiction invoked
Inherent discretion of the Court of Appeal to extend time under its Rules (Rule 82 of the Court of Appeal Rules)

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, "Lingam Enterprises Limited & 4 other v Radio Africa Limited [2014] KECA 282 (KLR)", Case Analysis (2014). Civil Application (extension of time application under Notice of Motion dated 11th July 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/282/eng@2014-11-07

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