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Court of AppealPartially AllowedCivil Application (Notice of Motion dated 14th August 2014)· [2015] KECA 510 (KLR)

John Kasimu Kilatya v Chairman Machakos Land Dispute Tribunal & 2 others [2015] KECA 510 (KLR)

Court of Appeal of Kenya
10 July 2015
Mohamed Abdulahi WarsameM. Warsame
1,338 words in judgment
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The bottom line

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Kenya's Court of Appeal gave a landowner more time to appeal because his lawyer's mistakes shouldn't punish him, though he must pay the other side's costs.

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 seeking enlargement of time to lodge a notice of appeal out of time. The applicant, John Kasimu Kilatya, sought to appeal a High Court judicial review decision of 30th November 2012, which had dismissed his challenge to a Machakos Land Dispute Tribunal award - adopted as an order of the Principal Magistrate's Court at Machakos - that removed his name from the register of Kalama/Kiitini/420 and substituted the 3rd respondent's name. The notice of appeal was filed three days late, and the record of appeal was filed over two years late because the applicant's advocate failed to serve the request for typed proceedings on the respondent, disqualifying him from the benefit of the proviso to Rule 82(1). Applying the well-established Fakir Mohammed factors, the court (Warsame, JA) held the three-day delay in filing the notice of appeal was not inordinate, and that although the appeal was out of time due to the non-service, the applicant acted promptly on obtaining the certificate of delay, making the delay explained and excusable. Relying on Bamanya v Zaver, the court held that counsel's mistakes should not be visited on the litigant, while cautioning that only errors supported by a proper and reasonable explanation qualify. The application was allowed with costs to the respondents, borne by the applicant. The decision does not disturb the High Court's decision; it merely enables the intended appeal to be filed.

Key legal issues

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01

Whether the delay in filing the notice of appeal was inordinate

Holding

A three-day delay in filing the notice of appeal is not inordinate

Reasoning

The notice of appeal was due by 14th December 2012 and was filed on 17th December 2012, a delay of three days. The court held such a short delay would not shut the doors of justice to the applicant.

p. 2
02

Whether the delay in filing the record of appeal was excusable

Holding

Although non-service of the request for proceedings made the appeal out of time, the applicant acted promptly on obtaining the certificate of delay, so the delay was explained and excusable

Reasoning

The applicant's advocate failed to serve the letter requesting typed proceedings on the respondent, disqualifying him from the proviso to Rule 82(1). However, once the certificate of delay was issued on 8th August 2014, the applicant immediately moved to regularise his position by filing the motion, which the court found excusable.

p. 3
03

Whether counsel's omission should defeat the application

Holding

Only advocate errors meeting the threshold of a proper and reasonable explanation attract the court's discretion; here the explanation was reasonable and plausible

Reasoning

The court accepted that the applicant's predicament was caused by his counsel's omissions, and applying Bamanya v Zaver, held that litigants should not be punished for counsel's faults where the explanation meets the threshold of a proper and reasonable explanation. The court found the explanation reasonable and plausible and exercised its discretion in the applicant's favour.

p. 3

Legal principles established

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  • Counsel's mistakes or dilatory conduct should not be visited on the litigant, provided a proper and reasonable explanation for the delay is given
  • Rule 4 discretion is wide and unfettered but must be exercised judiciously on relevant, non-exhaustive factors
  • An appellant cannot rely on the proviso to Rule 82(1) unless the application for typed proceedings was in writing and served on the respondent

Court orders

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  1. 1.Extension of time granted as sought in the notice of motion dated 14th August 2014
  2. 2.Costs of the application awarded to the respondents, borne by the applicant

Authorities

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Legislation

  • Court of Appeal Rules (Courts Rules)Rule 4
  • Court of Appeal Rules (Courts Rules)Rule 82(1) proviso and sub-rule (2)

Cases cited (3)

  • Fakir Mohammed v Joseph Mugambi & 2 Others
    [2005] eKLR (Civil Application No. Nai 332 of 2004)
  • Mongira & Another v Makori & Another
    [2005] 2 KLR 103
  • Bamanya v Zaver
    [2002] 2 EA 329 (CAU)
On appeal from
High Court of Kenya
judicial review application (number not stated)
Jurisdiction invoked
Inherent extension-of-time jurisdiction under Rule 4 of the Court of Appeal Rules (single judge application)

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, "John Kasimu Kilatya v Chairman Machakos Land Dispute Tribunal & 2 others [2015] KECA 510 (KLR)", Case Analysis (2015). Civil Application (Notice of Motion dated 14th August 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/510/eng@2015-07-10

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