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Court of AppealAllowedCivil Application (Motion dated 30th July 2013)· [2014] KECA 566 (KLR)

George Kagima Kariuki & 2 others v George M. Gichimu & 2 others [2014] KECA 566 (KLR)

Court of Appeal of Kenya
30 May 2014
JMJ. Mohammed
2,569 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 litigants more time to appeal after their lawyer's mistakes, confirming attorney errors shouldn't permanently destroy a client's right to be heard.

What this practically means

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Executive summary

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This was a single-Judge application under Rules 4, 42 and 43 of the Court of Appeal Rules by Daniel Baragu and others seeking extension of time to lodge a notice of appeal and a record of appeal against a High Court judgment delivered on 16th April 2010. The applicants' earlier record of appeal had been struck out on 24th February 2012 as incurably defective, and the fresh application was filed on 30th July 2013 - a delay of about 492 effective days. The applicants explained the delay by their instruction of the firm of Ochieng, Onyango, Kibet & Ohaga Advocates, to whom they paid Ksh.200,000, which firm failed to act, compounded by counsel's election as Migori County Assembly Speaker. The respondents opposed, characterising the delay as inordinate and unexplained. The court rehearsed the settled Rule 4 parameters: the unfettered but judicially exercised discretion, considering the length of delay, the reason for delay, the arguability of the appeal and prejudice to the respondent, with the list non-exhaustive. It held that a plausible and satisfactory explanation is the key to the discretion, that mistakes of counsel should not necessarily debar a litigant from enforcing his rights, and that the intended appeal - raising questions of partnership and contract for sharing profits - was arguable. Finding no substantial prejudice beyond compensable costs, the court allowed the application, extending time for both the notice of appeal and the record of appeal, with costs of the application abiding the outcome of the intended appeal.

Key legal issues

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01

Whether the approximately 492-day delay was excusable and whether extension of time should be granted

Holding

Extension granted; the delay was attributable to the inactions of two law firms instructed by the applicants, the intended appeal was arguable, and the respondents would not suffer substantial prejudice beyond compensable delay.

Reasoning

The court applied the settled Rule 4 parameters: length of delay, reason for delay, arguability of the appeal and prejudice to the respondent, plus any other relevant factor. It found the delay of about 492 days was caused by the errors and inactions of the applicants' advocates, that the mistake of counsel should not debar a litigant from enforcing rights, and that the appeal raised arguable issues on partnership and contract. Justice demanded the applicants be heard.

p. 4
02

Whether the intended appeal was arguable

Holding

The appeal was found arguable because it raised questions on the existence of a partnership or contract for sharing profits.

Reasoning

The court reiterated that an arguable appeal need not be one that will succeed; it suffices that it is not frivolous. Here the intended appeal raised substantive issues on whether a partnership existed or a contract to engage in business with a view to making and sharing profit.

p. 5

Legal principles established

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  • The discretion under Rule 4 to extend time is unfettered but must be exercised judicially, considering the length of delay, reason for delay, arguability of the appeal and prejudice to the respondent, and any other relevant factor.
  • Mistakes or inaction of a litigant's legal advisers should not necessarily debar the litigant from enforcing his rights.
  • A plausible and satisfactory explanation for delay is the key that unlocks the court's discretion to extend time.

Court orders

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  1. 1.Time extended to file and serve a notice of appeal against the judgment of the Hon Lady Justice Martha Koome made on 16th April, 2010
  2. 2.The notice of appeal shall be filed and served on or before 5pm on 16th June, 2014
  3. 3.Time extended for filing the record of appeal against the judgment of the Hon Lady Justice Martha Koome made on 16th April, 2010
  4. 4.The record of appeal shall be filed and served on or before 5pm on 18th August, 2014
  5. 5.The costs of the application shall abide by the outcome of the intended appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 42
  • Court of Appeal RulesRule 43

Cases cited (15)

  • Mutiso v Mwangi
    Civil Application No. NAI 255 of 1997 (UR)
  • Mwangi v Kenya Airways Ltd
    [2003] KLR 486
  • Major Joseph Mwereri Igweta v Murika M'Ethare & Attorney General
    Civil Application No. NAI 8 of 2000 (UR)
  • Murai v Wainaina (No. 4)
    [1982] KLR 38
  • Fakir Mohammed v Joseph Mugambi & Another
    Civil Application No. NAI 332/04
  • Ratman v Camarasamy
    [1964] 3 All ER 933
  • George Roine Titus & Another v John P. Nangurai
    Civil Application No. 331 of 2000
  • Mawatt Estate Limited v Mbanji Ltd
    Civil Application No. 247 of 2000
  • Republic v District Commissioner Machakos & Another
    Civil Application No. 263 of 1990
  • Samken Limited & Another v Mercedes Sanchenz Rau Tussel & Another
    Civil Application No. 21 of 1999
  • Anthony Chuma Goiti v Kieru Goiti
    (2006) eKLR
  • Wasike v Swala
    [1984] KLR 591
  • Bamanya v Zaver
    [2002] EA 329
  • Trust Bank Ltd v Amalo Company Ltd
    C.A. No. 215 of 2000
  • Shabir Din v Ram Parkash Anand
    [1955] EACA
On appeal from
High Court (superior court)
HCC No. 137 of 2000
Jurisdiction invoked
Rules 4, 42 and 43 of the Court of Appeal Rules (extension of time)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "George Kagima Kariuki & 2 others v George M. Gichimu & 2 others [2014] KECA 566 (KLR)", Case Analysis (2014). Civil Application (Motion dated 30th July 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/566/eng@2014-05-30

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