Marangu Rucha & another v Bernadette Muthina Nzioki & 8 others [2015] KECA 582 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Satisfactory explanation of delay
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
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.
Mistake of advocate as a ground for extension
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
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.
Overriding objective and extension of time
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
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.
Legal principles established
#- 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
#- 1.The application for extension of time is dismissed
- 2.Costs of the application awarded to the respondents
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kipsirgoi Investments Limited v Local Authorities Pension Trust Registered Trustees; National Environment Management Authority (Interested Party) (Petition E033 of 2021) [2022] KEELC 3220 (KLR)[2022] KEELC 3220 (KLR)26 May 2022
- Wilfred Munai Kilungu & another v Mutavi Munai [2021] KEELC 4195 (KLR)[2021] KEELC 4195 (KLR)2 Mar 2021
- Rajesh Rughani v Fifty Investments Limited & Another[2016] KECA 829 (KLR)29 Jan 2016
Cite this brief
#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.