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Court of AppealAllowedCivil Application (not fully stated in judgment; Coram: E.M. Githinji, JA)· [2014] KECA 326 (KLR)

Baobab Beach Resort & Spa Limited v Duncan Muriuki Kaguuru & another [2014] KECA 326 (KLR)

Court of Appeal of Kenya
10 June 2014
1,824 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This was a single-judge application under Rule 4 of the Court of Appeal Rules, supported by sections 3A and 3B of the Appellate Jurisdiction Act and Articles 48 and 159(2)(d) of the Constitution, seeking extension of time to file and serve the record of appeal against a ruling of the High Court (Mumbi Ngugi, J.) delivered on 12 June 2013, which overruled a preliminary objection seeking to strike out a constitutional petition alleging racial discrimination and defamation against the applicant. The applicant argued that the delay in lodging the record was caused by the High Court's delay in providing proceedings and a certified copy of the order; the respondents countered that the applicant's advocate failed to take the essential step of submitting a draft order for approval. Githinji, JA, held that only the time required for preparation and delivery of a copy of the proceedings is excluded under the proviso to Rule 82(1), and that time taken to extract a certified order is not excluded, rejecting counsel's contrary contention as unsupported by authority. Nevertheless, the delay of roughly two months and one week (excluding the Christmas vacation) was held not inordinate and excusable, flowing from the advocate's honest but mistaken belief, and the intended appeal - raising weighty questions on whether the Bill of Rights binds non-State actors and the threshold for a constitutional question - was found arguable. Prejudice to the respondents was limited and mitigated by their own consent to a stay of proceedings. The application was allowed with costs to the respondents, and the applicant was ordered to file and serve the record of appeal within 14 days.

Key legal issues

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01

Computation of time under proviso to Rule 82(1)

Holding

Only the period required for preparation and delivery of a copy of the proceedings is excluded; time for extracting the certified order is not.

Reasoning

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.

p. 2
02

Whether the delay was excusable

Holding

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.

Reasoning

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.

p. 3
03

Arguability of the intended appeal

Holding

The intended appeal is arguable, raising weighty constitutional interpretation issues including whether the Bill of Rights binds non-State actors.

Reasoning

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.

p. 3
04

Prejudice to the respondents

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The application for extension of time is allowed
  2. 2.The applicant to file and serve the record of appeal within 14 days from the date of the order
  3. 3.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 48
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 27
  • Appellate Jurisdiction ActSections 3A and 3B
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 82(1) and proviso; Rule 82(2)
  • Court of Appeal RulesRule 87(1); Rule 87(2)
  • Court of Appeal RulesRule 88
  • National Cohesion and Integration Act No. 12 of 2008(not specified)

Cases cited (6)

  • Wasike v. Swala
    [1984] KLR 591
  • Leo Sila Mutiso v Rose Helen Wangari Mwangi
    Civil Application No. NAI 251 of 1997 (unreported)
  • Daniel Ng'ang'a Kanyi v. Sosphina Co. Limited & Anor.
    Civil Appeal (Application) No. 315 of 2001 - Nakuru [2005] eKLR
  • Paul Wanjohi Mathenge v. Duncan Gichare Mathenge
    Nyeri, Civil Application No. NAI 50 of 2010 [2013] eKLR
  • Murai v. Wainaina (No. 4)
    [1982] KLR 38
  • Mukisa Biscuits Manufacturing Co. Limited v West End Distributors Limited
    [1969] EA 696
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

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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, "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.