Baobab Beach Resort & Spa Limited v Duncan Muriuki Kaguuru & another [2014] KECA 326 (KLR)
The bottom line
#Kenya's Court of Appeal gave a litigant more time to file an appeal, ruling an honest mistake by a lawyer shouldn't sink the case.
What this practically means
#Executive summary
#Key legal issues
#Computation of time under proviso to Rule 82(1)
Only the period required for preparation and delivery of a copy of the proceedings is excluded; time for extracting the certified order is not.
The court rejected counsel's reliance on Daniel Ng'ang'a Kanyi v. Sosphina Co. Limited, which in fact holds the opposite of his contention. The applicant's mistaken belief that a competent appeal required the certified order before filing the record was honest but wrong, and does not excuse the entire delay.
Whether the delay was excusable
The delay of about two months and one week (excluding Christmas vacation) was not inordinate and was excusable given the counsel's honest but mistaken belief and persistent efforts to obtain a certificate of delay.
The applicant had evinced an intention to appeal from the date of the ruling by seeking leave to appeal, stay of proceedings and persistently pursuing the certified order and certificate of delay. The court applied the principle that advocates' mistakes should not always be visited on litigants.
Arguability of the intended appeal
The intended appeal is arguable, raising weighty constitutional interpretation issues including whether the Bill of Rights binds non-State actors.
Although the notice of preliminary objection and pleadings were omitted from the record, the comprehensive ruling of the High Court, the supporting affidavit and the draft memorandum of appeal supplied sufficient material for the court to discern arguability. The omission was not fatal.
Prejudice to the respondents
Any prejudice is limited to delay occasioned by judicial process, and the respondents had consented to stay of proceedings pending appeal; costs would be fair compensation.
The court weighed the respondent's undoubted right of the applicant to appeal against the respondents' delay in the petition, noting the respondents themselves consented to a stay of proceedings, and held that an order of costs fairly compensates any prejudice.
Legal principles established
#- Extension of time under Rule 4 is exercised judicially on the established principles of length of delay, reasons for delay, chances of the appeal succeeding, and prejudice to the respondent, informed by the overriding objective.
- Only the time certified as required for preparation and delivery of a copy of the proceedings is excluded under the proviso to Rule 82(1); time taken in extracting a certified copy of the order is not excluded.
- Omission of documents required by Rule 87(1) or 87(2) from a record of appeal is curable under Rule 88 by a supplementary record of appeal.
- A litigant may, depending on the circumstances, be relieved from the mistakes of his advocate.
Court orders
#- 1.The application for extension of time is allowed
- 2.The applicant to file and serve the record of appeal within 14 days from the date of the order
- 3.Costs of the application awarded to the respondents
- On appeal from
- High Court of Kenya
- not stated in the judgment
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and Rule 4 of the Court of Appeal Rules, informed by Articles 48 and 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Baobab Beach Resort & Spa Limited v Duncan Muriuki Kaguuru & another [2014] KECA 326 (KLR)", Case Analysis (2014). Civil Application (not fully stated in judgment; Coram: E.M. Githinji, JA). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/326/eng@2014-10-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.