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Court of AppealPartially AllowedCivil Application No. Nai 366 of 2009

Catherine Njuguini Kanya & 2 others v Commercial Bank of Africa Limited [2015] eKLR

Court of Appeal of Kenya
6 March 2015
RNR.N. NambuyeSKS. Gatembu KairuPhilomena Mbete MwiluP.M. Mwilu
6,628 words in judgment
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The bottom line

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Kenya's Court of Appeal let three litigants revive their appeal after their lawyer's delay, ruling a client shouldn't pay for an advocate's mistakes.

What this practically means

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Executive summary

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This was a reference under rule 55 of the Court of Appeal Rules to a full bench from the decision of Onyango Otieno, JA (single judge) dismissing the applicants' rule 4 application for extension of time to file and serve a record of appeal out of time against the ruling of Kimaru, J in H.C.C.C. No. 531 of 2002, which had dismissed their application to review the judgment of Ransley, J in consolidated employment-benefits suits. The single judge had excused the delay attributable to the first advocates, Khaminwa & Khaminwa, but withheld relief on three grounds: the unexplained 50-day delay from 2nd November to 22nd December 2009 while the file was with the incoming advocates, Oduk & Co; the absence of a draft memorandum of appeal; and prejudice to the respondent from execution. Nambuye, JA, writing the leading ruling with Mwilu, JA concurring fully, found the single judge fell into error: the litigants played no role in the second delay, which was the second firm's inadventure that should not have been visited on them; absence of a draft memorandum was not a mandatory bar under the Leo Sila Mutiso criteria; and execution of the judgment was not a major rule 4 consideration. Gatembu, JA dissented on reasoning, holding the 50-day delay was wholly unexplained and the single judge's discretion should stand, but as he was alone, the orders proposed by Nambuye, JA prevailed. The court set aside the dismissal of 2nd March 2012, allowed the application on condition that the record of appeal be lodged and served within 30 days, failing which the extension lapses, with costs of the application to the respondent payable personally by Oduk & Company advocates.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the full court on a reference under rule 55 should interfere with the single judge's refusal to extend time for filing and serving the record of appeal out of time
  2. 2.Whether the unexplained 50-day delay between 2nd November 2009 and 22nd December 2009, attributable to the incoming advocates, should have been excused or visited on the litigants
  3. 3.Whether the absence of a draft memorandum of appeal from the application was a proper ground for withholding relief
  4. 4.Whether prejudice to the respondent from execution of the judgment was a weighty factor against extension of time

Key legal issues

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01

Principles governing extension of time under rule 4 of the Court of Appeal Rules

Holding

The court exercises a judicial discretion guided by the length of the delay, its explanation, prejudice, the merits, public administration, compliance with time limits and the parties' resources; the list is not exhaustive.

Reasoning

The court adopted the settled principles in Major Joseph Mweteri Igweta and Leo Sila Mutiso, holding that the discretion is unfettered but must be exercised judicially, and that the listed factors are not a passport to ignoring time limits, nor are they exhaustive of the considerations a court may take into account.

p. 2
02

Whether the litigants should bear the blame for the second advocates' unexplained delay

Holding

No; where the first advocates' similar inadvertence was excused, the second advocates' inadvertence should not have been visited on the innocent litigants absent strong grounds.

Reasoning

Nambuye, JA found that the applicants, as litigants, had no role in the second delay: the record passed directly from Khaminwa & Khaminwa Advocates to Oduk & Company Advocates, and the 50-day delay was the incoming advocates' inadventure. Having excused the first firm's delay, the single judge could only refuse to excuse the second firm's delay on strong grounds, none of which appeared on the record.

p. 6
03

Whether absence of a draft memorandum of appeal was a bar to extension of time

Holding

No; under Leo Sila Mutiso the merits of the intended appeal are only a possibility and not a mandatory requirement, so failure to annex draft grounds should not have tilted the scales against the innocent litigants.

Reasoning

The court held that the arguability factor in the celebrated Mutiso criteria is a mere possibility, not a mandatory ingredient, and that the single judge erred in placing heavy weight on the absence of a draft memorandum of appeal, especially where the prejudice to the respondent could be compensated by costs.

p. 6
04

Whether execution of the judgment is a major consideration against extension of time

Holding

Execution of the judgment is not one of the major considerations under rule 4; its implications are best dealt with at the hearing of the intended appeal.

Reasoning

The court held that although the rule 4 factors are not exhaustive and importance of compliance falls on the advocate on record, the fact of a fully or partly executed judgment is not a weighty ground for withholding extension of time and can be addressed when the appeal is argued.

p. 7

Legal principles established

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  • The factors in Leo Sila Mutiso governing extension of time under rule 4 are not exhaustive; the court's discretion is unfettered and may take into account other relevant factors including the conduct of advocates and the importance of compliance.
  • An advocate's mistakes on time limits should not ordinarily be visited on the client; where a litigant's default is due to the advocate's mistake and no injustice is occasioned to the other party, the court should consider the applicant's case with broad understanding.
  • On a reference, the full court is not sitting on appeal over the single judge; it may interfere only where the single judge took into account an irrelevant factor, failed to take into account a relevant factor, applied a wrong principle, misapprehended the evidence, or reached a plainly wrong decision.

Court orders

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  1. 1.Set aside the dismissal order of 2nd March 2012 made by the single judge
  2. 2.Allowed the applicants' notice of motion dated 18th December 2009 and lodged on 22nd December 2009
  3. 3.Extended time on condition that the record of appeal is lodged and served within thirty (30) days from the date of reading of the ruling; in default the extension order lapses
  4. 4.Costs of the application to the respondent, to be paid personally by the firm of Oduk & Company advocates

The bench

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One judgment of the whole court — no separate or dissenting opinions.

RN
majority

Wrote the judgment

Wrote the leading ruling revisiting the single judge's decision, found error in penalising the litigants for the second advocates' unexplained delay, in treating absence of a draft memorandum as decisive, and in finding prejudice from execution; allowed the application with a 30-day condition.

In the result and for the reasons given above, I find sufficient cause to interfere with the learned single judge's exercise of his discretion and which I hereby do.p. 7
SK
concurring

Wrote the judgment

Wrote a separate ruling reaching the same orders but on different reasoning: he would not interfere with the single judge's discretion because the 50-day delay from 2 November to 22 December 2009 was wholly unexplained, but as he was alone in that view, the orders proposed by Nambuye, JA prevailed.

It is in the application of the legal principles to the circumstances of this case where I part company with my learned sister Judge. I do not share the view that a basis for interfering with the learned single Judge's exercise of discretion has been made out.p. 7
Philomena Mbete Mwilu
P.M. MwiluJA
Currently serving
majority

Wrote the judgment

Brief separate ruling concurring fully with the reasoning and findings of Nambuye, JA and agreeing the application should be allowed in the terms she proposed.

I concur fully with the reasoning and findings made therein. I agree entirely that the application should be allowed for the reasons and in the terms she has proposedp. 10
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 531 of 2002
Jurisdiction invoked
Rule 4 and rule 42(1) of the Court of Appeal Rules; reference to full court under rule 55 of the Court of Appeal Rules from the decision of a single judge (Onyango Otieno, JA) of 2nd March 2012

Relief refused

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Gatembu, JA would have declined to interfere with the single judge's decision

There was no explanation at all for the 50-day delay after the file left Khaminwa & Khaminwa Advocates, so no error in the single judge's exercise of discretion was shown

p. 10

Costs

The respondent will have costs of the application to be paid personally by the firm of Oduk & Company advocates.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I set aside the dismissal order of 2 nd March, 2012 and substitute it with an order allowing the applicant's application dated the 18th day of December, 2009 and lodged in this Court on the 22 nd day of December, 2009, on condition that the record of appeal is lodged and served within thirty (30) days from the date of the reading of this ruling. In default, the order on extention of time shall stand lapsed.
p. 7Final orders setting aside the single judge's dismissal and granting conditional extension of time
These provisions were not meant to aid an indolent party. They were meant to ensure justice to a party who had taken proper action to comply with the law but finds technicalities a stumbling block on his way to justice
p. 2Article 159 and sections 3A and 3B of the Appellate Jurisdiction Act are not a panacea for indolent parties
Any prejudice and or inconvenience likely to be suffered by the respondent can safely be compensated for by way of costs.
p. 7Prejudice from extension of time compensable in costs
It is unfortunate that advocates' sins and omissions are sometimes visited on their clients, who are left without the remedy they sought but to sue the advocate for professional negligence
p. 6Advocates' omissions should not be visited on clients
any attempt to limit the possible grounds for not granting an extension of time to those few listed in the Leo Sila Mutiso's case (supra) would amount to fettering the discretion allowed under rule 4
p. 4Mutiso factors are not exhaustive

Issues in the judgment

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minor

Inconsistent dates for the High Court ruling under appeal: the header states it was dated 21st March, 2009 while Nambuye, JA refers to 'the decision of Kimaru, J of 21st (27th) March, 2007' and elsewhere to delivery on 27th March 2009, and to the record being due on 'the 27th September, 2007' which in context should be 2009.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (12)

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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, "Catherine Njuguini Kanya & 2 others v Commercial Bank of Africa Limited [2015] eKLR", Case Analysis (2015). Civil Application No. Nai 366 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/907/eng@2015-03-06

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