Hellen Waruguru Waweru v Kiarie Shoe Stores Limited [2014] KECA 625 (KLR)
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
#Key legal issues
#Criteria governing extension of time under Rule 4
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.
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.
Evidential support for the reason for delay
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.
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.
Errors of counsel and the client
Errors on the part of counsel should not be visited upon the client, supporting a grudging grant of extension.
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.
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.The Notice of Motion dated 3rd December 2013 is allowed
- 2.The applicant has 14 days from the date of the order to file and serve the memorandum and record of appeal
- 3.The respondent's costs of the application shall be paid personally by counsel for the applicant, Messrs Mugambi Njeru & Co. Advocates
- 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.