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Court of AppealAllowedNotice of motion dated 6th September 2013 (Civil Application, Court of Appeal)· [2014] KECA 524 (KLR)

Rebecca Wambui Njoroge v Alice Wagikuyu Njoroge [2014] KECA 524 (KLR)

Court of Appeal of Kenya
20 June 2014
1,430 words in judgment
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The bottom line

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Kenya's Court of Appeal extended a widow's appeal deadline because her lawyer's mistake, not hers, caused the delay.

What this practically means

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Executive summary

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This is a single-Judge decision of the Court of Appeal at Nairobi delivered by G. B. M. Kariuki, JA on 20 June 2014, determining a notice of motion dated 6 September 2013 brought under Rule 4 of the Court's Rules by Rebecca Wambui Njoroge seeking extension of time to lodge an appeal against a High Court ruling of 12 June 2013 in Succession Cause No. 2600 of 2000. The applicant explained that her former advocates, Kioko Munyithya & Company, failed to lodge an appeal after being instructed, and that she discovered the default on 31 July 2013, after which she promptly retained new advocates who filed the application on 13 September 2013. The respondent did not oppose the application, having filed no replying affidavit. The Judge restated the settled rule 4 jurisprudence: the discretion is unfettered but must be exercised judicially, weighing the length of and reasons for the delay, the arguability of the intended appeal, prejudice to the other party, public importance and the requirements of access to justice under Article 48 of the Constitution and the overriding objective under sections 3A and 3B of the Appellate Jurisdiction Act. Applying the principle from Gulam Hussein N. Cassamand v. Shashikant Ramji that errors by a legal advisor may constitute acceptable excuse, the court found the applicant diligent and the delay of about one month and thirteen days not inordinate, and allowed the application. Time for giving notice of appeal was extended by 14 days, with prescribed timelines for service and filing of the record of appeal, and costs were made costs in the appeal. The intended appeal challenges dismissal of a review application and the proposed distribution of a deceased's estate under the Law of Succession Act.

Key legal issues

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01

Factors governing extension of time under rule 4

Holding

The Court identified the settled factors: length of delay, reasons for delay, arguability of the appeal, prejudice to the other party, public importance, and the overriding objective and access to justice.

Reasoning

The court surveyed its rule 4 jurisprudence, citing Gatu v Muriuki and Wasike v Khisa, and held the discretion is unfettered but judicial, guided by listed factors including the need to facilitate access to justice under Article 48 and the overriding objective under Section 3A and 3B(1) of the Appellate Jurisdiction Act.

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02

Whether error by a legal advisor is an acceptable excuse for delay

Holding

Errors or mistakes by a legal advisor can constitute acceptable excuse for failure to act within prescribed timelines.

Reasoning

Relying on Gulam Hussein N. Cassamand and Another v. Shashikant Ramji, where Madan JA held that errors by a legal advisor can be pardoned, the court accepted the applicant's explanation that her erstwhile advocates failed to lodge the appeal, and noted she had been diligent in monitoring their progress and acted promptly upon discovering the default.

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Whether the delay was inordinate and whether the applicant was diligent

Holding

The delay of about one month and thirteen days was not treated as disentitling; the applicant was diligent and no prejudice would be suffered by the unopposing respondent.

Reasoning

The applicant discovered the advocates' default on 31 July 2013, promptly retained new advocates and filed the application on 13 September 2013. The respondent filed no replying affidavit and counsel did not object. The court found no prejudice and exercised its discretion in the applicant's favour.

p. 3

Legal principles established

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  • The Court's discretion under rule 4 to extend time is unfettered but must be exercised judicially, considering the length of and reasons for delay, arguability of the appeal, prejudice, public importance and the interests of justice.

Court orders

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  1. 1.Time for giving notice of appeal is extended to 14 days from the date of the order
  2. 2.The applicant to file the notice of appeal within 14 days and serve it within 7 days
  3. 3.The record of appeal to be filed within 21 days from the date of service of the notice of appeal
  4. 4.Costs of the application to be in the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 53(1)
  • Constitution of KenyaArticle 48
  • Appellate Jurisdiction Act, Cap 9Section 3A(1)
  • Appellate Jurisdiction Act, Cap 9Section 3B(1)
  • Law of Succession Act, Cap 160(referred to in grounds of intended appeal)

Cases cited (3)

  • Gatu v Muriuki
    [1986] KLR 211
  • Wasike v Khisa
    [2004] KLR 197
  • Gulam Hussein N. Cassamand and Another v. Shashikant Ramji
    Civil Application No. Nai 1 of 1981
On appeal from
High Court of Kenya
High Court Succession Cause No. 2600 of 2000
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules; Rule 53(1); Section 3A(1) of the Appellate Jurisdiction Act, Cap 9

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, "Rebecca Wambui Njoroge v Alice Wagikuyu Njoroge [2014] KECA 524 (KLR)", Case Analysis (2014). Notice of motion dated 6th September 2013 (Civil Application, Court of Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/524/eng@2014-06-20

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