Charles Munge v Peter Icharia Munge & another [2015] KECA 514 (KLR)
The bottom line
#The Court of Appeal refused to forgive a 37-day delay in filing a notice of appeal, ruling that a lawyer's inaction is not an excusable mistake.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay in filing the notice of appeal was excusable
The delay was not explained at all; it resulted from counsel's inaction and travel after the time for filing had already expired, so the discretion under rule 4 could not be exercised in the applicant's favour
Counsel left the country on 11th June 2014, seven days after the fourteen-day period for filing a notice of appeal had expired, returned on 18th June 2014, and filed the notice three weeks later, then took a further two weeks to file the application. Travel is no solution since filing a notice of appeal is simple and mechanical. A delay caused by counsel's inaction is not an excusable mistake deserving sympathy.
Whether the respondents' failure to invoke rule 84 to strike out the notice of appeal aided the applicant
The respondents' non-use of the rule 84 striking-out procedure did not cure the unexplained delay or entitle the applicant to extension of time
The applicant argued that because the respondents did not apply to strike out the notice of appeal, it should be deemed properly filed. The court did not accept that this procedural omission by respondents displaced the applicant's own burden to explain the delay under rule 4. The application was dismissed on the ground that no material warranted the exercise of discretion.
Legal principles established
#- The court's discretion under rule 4 is unfettered but the applicant must satisfy established criteria: length of delay, reason for delay, chances of appeal succeeding, and prejudice to the respondent, among other relevant factors
- Filing a notice of appeal is a simple and mechanical task; counsel's inaction or travel does not excuse delay, as it does not require specific instructions from the client
- An advocate's mere inaction is not an excusable mistake that the court may consider with sympathy
Court orders
#- 1.The application for extension of time was rejected
- 2.The application was dismissed with costs to the respondents
- On appeal from
- High Court of Kenya
- Not stated in the judgment
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (inherent discretionary jurisdiction to enlarge time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles Munge v Peter Icharia Munge & another [2015] KECA 514 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/514/eng@2015-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.