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Court of AppealDismissedCivil Application No. NAI 320 of 2014 (UR. 242 of 2014)· [2015] KECA 925 (KLR)

The Council, Jomo Kenyatta University of Agriculture and Technology v Joseph Mutuura Mbeera & 3 Others

Court of Appeal
27 February 2015
PWP.N. Waki
3,432 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused JKUAT more time to appeal because its lawyer simply didn't read the appeal rules — ignorance is not an excuse.

What this practically means

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Executive summary

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This is a ruling by Waki JA, sitting in chambers, on a motion by the Council of JKUAT seeking extension of time to file and serve a notice of appeal against a judgment of the Industrial Court (Nduma J, 19 September 2014). The Industrial Court had declared the JKUAT Council improperly constituted for want of an inclusive, competitive and transparent appointment process, quashed the Gazette Notice publishing the appointments, and issued mandamus directing the Cabinet Secretary and JKUAT to commence recruitment afresh, while ring-fencing actions already taken by the Council. JKUAT's notice of appeal was filed 18 days after judgment, out of the 14-day limit under rule 75, was never served, and no letter bespeaking proceedings was served as required by rule 82(1). The sole explanation offered was counsel's ignorance of the Court of Appeal Rules, framed as a mistake of counsel not to be visited on the client and as a technicality to be ignored under Article 159(2)(d). The court held that the discretion under rule 4, though unfettered, must be exercised judiciously; that ignorance of the rules is not a genuine mistake but inaction, which is inexcusable; and that Article 159(2)(d) is not a panacea for procedural shortfalls. The AG's about-turn in supporting the motion was condemned as approbating and reprobating. Finding no prejudice to JKUAT and a higher public interest in constitutional compliance, the single judge dismissed the motion with costs to the 1st and 2nd respondents and declared the notice of appeal invalid.

Key legal issues

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01

Whether mistake of counsel amounting to ignorance of the Court of Appeal Rules is excusable

Holding

It is not; there is a distinction between misreading a provision (excusable) and not reading it at all (inexcusable)

Reasoning

The court drew on Mawji and Ratnam to hold that rules must prima facie be obeyed and that a party seeking extension must place material before the court. Counsel's admitted non-reading of rules 75, 77 and 82 produced inaction, which is not an excusable mistake but a failure to perform duties as agent, whose consequences the principal must bear.

p. 6
02

Whether Article 159(2)(d) compels the court to overlook the procedural default

Holding

No; Article 159(2)(d) applies on a case-by-case basis and does not overthrow rules of procedure

Reasoning

Relying on the Supreme Court in Obado and Salat, the court held that the oxygen principles were never meant to create an anarchical free-for-all or aid parties with scant respect for rules and timelines, since timelines make adjudication fair, just, certain and even-handed.

p. 5
03

Whether the intended appeal was arguable and whether prejudice would ensue

Holding

The court found no prejudice to the applicant if extension was refused, as the Industrial Court had ring-fenced its judgment; public interest favoured compliance with the Constitution

Reasoning

The Industrial Court had clarified that its orders did not nullify actions already undertaken by the Council, so students would not be left ungoverned. The higher public interest lay in ensuring constitutional compliance in public appointments, which the court described as the constant North.

p. 6

Legal principles established

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  • The discretion under rule 4 is unfettered but must be exercised judiciously on relevant factors including delay, reason for delay, arguability and prejudice
  • Ignorance of the rules by counsel is not a genuine mistake or excusable error justifying extension of time
  • Article 159(2)(d) is not a panacea for procedural shortfalls and does not aid parties who flout rules and timelines

Court orders

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  1. 1.The application for extension of time is rejected
  2. 2.The Notice of Appeal filed on 7th October 2014 is not deemed to have been properly filed and is invalid
  3. 3.The motion is dismissed with costs to the 1st and 2nd Respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 156
  • Court of Appeal Rules, 2010Rules 4, 42, 43(1), 75, 77, 82(1), 82(2), 83
  • Appellate Jurisdiction ActSections 3A and 3B

Cases cited (14)

  • Baber Alibhai Mawji v. Sultan Hasham Lalji & Others
    [1995] eKLR

    Distinction between misunderstanding a rule and not reading it; ignorance is not a genuine mistake

  • Habo Agencies Limited v. Wilfred Odhiambo Musingo
    Civil Appeal (Application) No. 124 of 2004 (ur)

    Restatement of principles governing rule 4 applications

  • Fakir Mohamed v Joseph Mugambi & 2 Others
    Civil Appl. 332/04 (UR)

    Rule 4 discretion is unfettered; relevant but not exhaustive factors

  • Mutiso vs Mwangi
    Civil Application No. Nai. 255 of 1997 (ur)

    Factors relevant to extension of time

  • Mwangi vs Kenya Airways Ltd
    [2003] KLR 486

    Factors relevant to extension of time

  • Major Joseph Mwereri Igweta vs Murika M'Ethare & Attorney General
    Civil Application No. Nai. 8 of 2000 (ur)

    Factors relevant to extension of time

  • Murai vs Wainaina (No. 4)
    [1982] KLR 38

    Mistakes of counsel, even on points of law, may be rectified in the interests of justice

  • City Chemist (Nbi) & Ano. vs Oriental Commercial Bank Ltd
    Civil Application No. NAI 302 of 2008 (UR 199/2008)

    Overriding objective confers latitude but does not uproot established principles or precedent

  • Zacharia Okoth Obado v Edward Akong'o Oyugi & 2 others
    [2014] eKLR

    Article 159 does not aid destruction of rules of procedure; endorsed Kiage JA's dicta in Salat

  • Nicholas Kiptoo Arap Korir Salat v IEBC & 6 others
    [2013] eKLR

    Courts must not provide succor to parties who exhibit scant respect for rules and timelines

  • Raila Odinga and 5 Others v. IEBC and 3 Others
    Petition No. 5 of 2013, [2013] eKLR

    Article 159(2)(d) is not a panacea for procedural shortfalls and applies case-by-case

  • Ratnam v. Cumarasamy
    [1964] 3 All ER 933

    Rules must prima facie be obeyed; material needed to justify extension of time

  • Rajesh Rughani v. Fifty Investment Ltd. & Another
    (2005) eKLR

    Simple inaction by an advocate is not an excusable mistake

  • Bains Construction Co. Ltd. v. John Mzare Ogowe
    2011 eKLR

    Principal bears consequences when agent fails to perform duties

On appeal from
Industrial Court of Kenya at Nairobi
IND. CORT PET. N NO. 33 OF 2013
Jurisdiction invoked
Rule 4, 42 and 43(1) of the Court of Appeal Rules, 2010; Sections 3A and 3B of the Appellate Jurisdiction Act; Article 159(2)(d) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (16)

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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, "The Council, Jomo Kenyatta University of Agriculture and Technology v Joseph Mutuura Mbeera & 3 Others", Case Analysis (2015). Civil Application No. NAI 320 of 2014 (UR. 242 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/925/eng@2015-02-27

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