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Court of AppealDismissedNot stated in judgment· [2015] KECA 582 (KLR)

Marangu Rucha & another v Bernadette Muthina Nzioki & 8 others [2015] KECA 582 (KLR)

Court of Appeal of Kenya
3 July 2015
1,424 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal dismissed applicants' bid to file a late appeal, ruling that blaming a lawyer doesn't excuse unexplained delays.

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 memorandum and record of appeal against a High Court ruling of Makau, J. of 31st July 2012, by which the applicants were found guilty of contempt and each sentenced to one month. A notice of appeal was filed on 14th August 2012, but the record of appeal was never filed. The applicants blamed their former advocates, Messrs Mindo & Co Advocates, asserting they only learnt in July 2014 that no appeal had been prosecuted. The respondents opposed, alleging laches, abuse of court process, and want of candour and sufficient cause. The court, per M. Warsame, JA, restated the principles for extension of time: an arguable appeal, absence of prejudice, and a satisfactory explanation for delay, while emphasizing that the Rule 4 discretion is wide and unfettered. Applying Rule 81, which requires the record to be filed within sixty days, the court found the delay of over one year to be inordinate and unexplained. It held that an advocate's mistake must be excusable to benefit an applicant, and that the applicants' own failure to follow up on their instructions amounted to inexcusable indolence, particularly since no evidence from the impugned advocate supported the blame. The court also rejected reliance on the overriding objective in section 3A of the Appellate Jurisdiction Act as a cure for all omissions. The application was dismissed with costs to the respondents.

Key legal issues

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01

Satisfactory explanation of delay

Holding

The delay of over one year in filing the record of appeal was inordinate and unexplained; the applicants blamed their former advocates but produced no evidence from that advocate to support the blame

Reasoning

The record of appeal was due within sixty days under Rule 81 of the Court of Appeal Rules. Proceedings were ready by about June 2013, yet no action was taken until the application was filed over a year later. Blaming the former advocate was insufficient without any indication from that advocate, and the applicants' own failure to follow up amounted to indolence.

p. 2
02

Mistake of advocate as a ground for extension

Holding

An advocate's mistake is a factor the court may consider, but it must be an excusable mistake; the applicants' own indolence in not verifying whether their instructions had been acted upon defeats the claim

Reasoning

The applicants instructed their former advocate to file a notice of appeal but did nothing to confirm performance of those instructions until July 2014. Their inaction, while concurrent proceedings on similar matters were being pursued by current advocates, was inexcusable and militated against the exercise of discretion in their favour.

p. 3
03

Overriding objective and extension of time

Holding

The overriding objective under section 3A of the Appellate Jurisdiction Act facilitates access to justice but is not a panacea to excuse every omission by parties prosecuting appeals

Reasoning

The court endorsed the exposition in Aviation Cargo Support Limited v St Mark Freight Services Limited on the utility of the overriding objective, but held, consistent with Westmont Power (K) Ltd v Commissioner of Income Tax, that sections 3A and 3B cannot be used to sweep away established principles or excuse all failures to comply with appellate rules.

p. 3

Legal principles established

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  • A mistake of advocate must be excusable to benefit an applicant seeking extension of time; not every advocate's mistake is forgiven, particularly where the client was indolent in following up
  • The discretion under Rule 4 is wide and unfettered and is not limited to the listed factors, so long as it is exercised judicially
  • Sections 3A and 3B of the Appellate Jurisdiction Act (overriding objective) cannot be invoked as a matter of course to excuse any failure to comply with the rules regulating appeals

Court orders

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  1. 1.The application for extension of time is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 81
  • Appellate Jurisdiction Act (Cap 9)Section 3A
  • Appellate Jurisdiction Act (Cap 9)Section 3B

Cases cited (5)

  • Standard Ltd v Gekonga & 2 others
    [2005] eKLR, Civil Application No. Nai. 131 of 2004 (NAK.8/04)
  • Mongira & Another v Makori & Another
    [2005] 2 KLR 103
  • Shital Bimal Shah & 2 others v Akiba Bank Limited & 4 others
    [2006] eKLR, Civil Appeal Appli 159 of 2005
  • Aviation Cargo Support Limited v St Mark Freight Services Limited
    [2014] eKLR, Civil Application No Nai 98 of 2013
  • Westmont Power (K) Ltd v Commissioner of Income Tax
    [2010] eKLR, Civil Appeal No. 128 of 2006
On appeal from
High Court of Kenya
Not stated
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules; section 3A of the Appellate Jurisdiction Act (Cap 9)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Marangu Rucha & another v Bernadette Muthina Nzioki & 8 others [2015] KECA 582 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/582/eng@2015-07-03

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