Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially Allowed· [2014] KECA 625 (KLR)

Hellen Waruguru Waweru v Kiarie Shoe Stores Limited [2014] KECA 625 (KLR)

Court of Appeal of Kenya
13 May 2014
1,164 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal gave a late appellant 14 days to file an appeal, but ordered the lawyer to personally pay costs for the unexplained 140-day delay.

What this practically means

#

Executive summary

#
This was a single-judge ruling of the Court of Appeal at Nyeri by Otieno-Odek, JA, on a Notice of Motion dated 3rd December 2013 seeking extension of time under Rules 4 and 42 of the Court of Appeal Rules 2010 to file the memorandum and record of appeal out of time, following a High Court judgment delivered on 20th February 2013. Certified proceedings were availed on 23rd July 2013, and the delay in filing the record exceeded 140 days. The applicant attributed the delay to counsel's inadvertence - the clerk had filed away the file - but the clerk swore no affidavit and no draft grounds of appeal were attached, preventing assessment of arguability. The respondent opposed, contending the delay was unexplained and the appeal unarguable. The court restated the settled Rule 4 criteria - length of delay, reason for delay, chances of the appeal succeeding, and prejudice to the respondent - as drawn from Fakir Mohamed v Joseph Mugambi and Mutiso v Mwangi, read with the overriding objective under Sections 3A and 3B of the Appellate Jurisdiction Act. Not fully satisfied that the delay was explained, the court nevertheless granted the extension because the judgment sum had been deposited in a joint account, meaning the respondent would suffer no prejudice, and because errors of counsel should not be visited upon the client. The applicant was given 14 days to file and serve the record, and, in a notable departure from the usual 'costs in the cause', the respondent's costs of the application were ordered to be paid personally by the applicant's counsel, Messrs Mugambi Njeru & Co. Advocates.

Key legal issues

#
01

Criteria governing extension of time under Rule 4

Holding

The court applied the settled four-fold criteria: length of delay, reason for delay, arguability of the appeal, and prejudice to the respondent, within the overriding objective.

Reasoning

The court reaffirmed that the Rule 4 discretion is unfettered but requires sufficient reasons, and is exercised by reference to the factors in Fakir Mohamed and Mutiso v Mwangi, now read with the duty under Sections 3A and 3B of the Appellate Jurisdiction Act to secure just, expeditious, proportionate and affordable resolution of disputes.

p. 2
02

Evidential support for the reason for delay

Holding

The asserted inadvertence of counsel was not satisfactorily established because the clerk did not swear an affidavit and no draft grounds of appeal were attached.

Reasoning

The applicant blamed her counsel's clerk for filing away the file, but the clerk gave no affidavit and no draft grounds of appeal were attached, preventing any assessment of the appeal's arguability. The court was therefore not fully satisfied that the over 140-day delay was explained.

p. 2
03

Errors of counsel and the client

Holding

Errors on the part of counsel should not be visited upon the client, supporting a grudging grant of extension.

Reasoning

Although dissatisfied with the explanation for the delay, the court granted leave because the judgment sum had been deposited in a joint account, so the respondent would suffer no prejudice, and because counsel's errors should not be visited on the client. To mark the court's displeasure, costs were ordered personally against counsel.

p. 3

Legal principles established

#
  • The discretion under Rule 4 of the Court of Appeal Rules is unfettered but must be guided by the length of delay, the reason for delay, the chances of the appeal succeeding, and prejudice to the respondent, informed by the overriding objective under Sections 3A and 3B of the Appellate Jurisdiction Act.
  • A reason for delay asserted on affidavit must be supported by evidence; uncorroborated claims of inadvertence by counsel weigh against the applicant.

Court orders

#
  1. 1.The Notice of Motion dated 3rd December 2013 is allowed
  2. 2.The applicant has 14 days from the date of the order to file and serve the memorandum and record of appeal
  3. 3.The respondent's costs of the application shall be paid personally by counsel for the applicant, Messrs Mugambi Njeru & Co. Advocates

Authorities

#

Legislation

  • Court of Appeal Rules, 2010Rule 4
  • Court of Appeal Rules, 2010Rule 42
  • Appellate Jurisdiction ActSection 3A
  • Appellate Jurisdiction ActSection 3B

Cases cited (3)

  • Fakir Mohamed v Joseph Mugambi & 2 Others
    Civil Application Nai 332 of 2004 (unreported)
  • Njoka Muriu & another v Evans Githinji Muriu & Another
    Civil Application No. Nai 356 of 2003
  • Mutiso v Mwangi
    (1997) KLR 630
On appeal from
High Court of Kenya
Not stated
Jurisdiction invoked
Rules 4 and 42 of the Court of Appeal Rules 2010; Sections 3A and 3B of the Appellate Jurisdiction Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Hellen Waruguru Waweru v Kiarie Shoe Stores Limited [2014] KECA 625 (KLR)", Case Analysis (2014). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/625/eng@2014-05-13

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