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Court of AppealDismissedCivil Appeal (Application) No. 124 of 2004· [2015] KECA 987 (KLR)

Habo Agencies Limited v Wilfred Odhiambo Musingo

Court of Appeal of Kenya
16 January 2015
PWP.N. Waki
3,463 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to revive Habo Agencies' dismissed appeal, ruling that blaming your lawyer for inaction does not excuse a 15-month delay.

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 notice of motion dated 10th June 2014 by Habo Agencies Limited seeking extension of time under Rule 4 of the Court of Appeal Rules to lodge an application for restoration of its appeal, which had been dismissed on 5th February 2013 for non-attendance despite service of hearing notices. The underlying dispute arose from a 2000 suit by Wilfred Odhiambo Musingo against Habo, a clearing and forwarding company, over a motor vehicle Habo was instructed to clear and deliver but instead sold. Habo's defence was struck out, judgment was entered in default, and successive attempts to challenge the judgment and prosecute appeals failed through counsel's omissions. The application for extension of time was filed almost one year and three months after the dismissal of the appeal. Habo blamed its erstwhile advocates entirely, but filed no affidavit from those advocates despite their written offer to swear one, and was vague about when and how it learned of the dismissal. The court reaffirmed that the Rule 4 discretion is unfettered but must be exercised on proper material, guided by the overriding objective and Article 159 of the Constitution, which is not a panacea for procedural shortfalls. The court excused only the delay between March and June 2014 attributable to the unavailability of the court file, finding no explanation for the rest. It held that mere inaction by advocates is not an excusable mistake, that the applicant was not candid, and that further prolongation would prejudice the decree holder and violate the public policy that litigation must come to an end. The application was dismissed with costs.

Key legal issues

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01

Whether the discretion under Rule 4 is fettered by the requirement of 'sufficient reasons'

Holding

The discretion is unfettered; there is no limit to the number of relevant factors the court may consider, including delay, reasons, chances of success, prejudice, and public importance.

Reasoning

The court reaffirmed the well-settled principles since the removal of the 'sufficient reason' stricture in 1985, citing Fakir Mohamed v Joseph Mugambi and the line of authorities from Mutiso v Mwangi onwards. The factors are relevant but not exhaustive, and the court must also be guided by the overriding objective under Sections 3A and 3B of the Appellate Jurisdiction Act.

p. 3
02

Whether the delay of almost one year and three months was excusable

Holding

The delay was inordinate and unexplained for the period from February 2013 to March 2014; only the delay between March and June 2014 (court file unavailability) was excused.

Reasoning

The applicant failed to obtain and file an affidavit from its erstwhile advocates to explain the delay, despite the advocates indicating willingness to swear one. The applicant was also cagey about exactly when and how it became aware of the dismissal, which deprived it of equitable relief.

p. 5
03

Whether blaming erstwhile advocates' inaction constitutes an excusable mistake

Holding

Mere inaction by an advocate is not an excusable mistake which the court may consider with sympathy; the client bears responsibility to pursue its matter.

Reasoning

Relying on Rajesh Rughani v Fifty Investment Ltd and Bains Construction Co Ltd v John Mzare Ogowe, the court distinguished cases where counsel made a genuine mistake from cases of sheer inaction. Here the advocates were simply accused of doing nothing, which does not avail the applicant.

p. 6
04

Whether prolongation of the litigation would be prejudicial

Holding

Since part of the decretal amount in escrow had been released to the respondent by consent, further prolongation would be prejudicial and would violate the public policy that litigation must come to an end.

Reasoning

The court agreed with respondent's counsel that after 11 years the decree holder was still awaiting full enjoyment of the fruits of his success. The consent release of the escrow funds and commencement of proceedings to recover the balance weighed against extension.

p. 6

Legal principles established

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  • The discretion under Rule 4 of the Court of Appeal Rules is unfettered and does not require establishment of 'sufficient reasons'; the relevant factors include the period and reason for delay, chances of appeal succeeding, and prejudice to the respondent.
  • A party cannot simply blame its advocates for all transgressions in litigation; parties have a responsibility to follow up their cases even when represented by counsel, and mere inaction by an advocate is not an excusable mistake.
  • Article 159(2)(d) of the Constitution is not a panacea for all procedural shortfalls; courts must not provide succor to parties who exhibit scant respect for rules and timelines.
  • To justify extension of time there must be some material on which the court can exercise its discretion; otherwise a party in breach would have an unqualified right to an extension defeating the purpose of the rules.

Court orders

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  1. 1.The notice of motion dated 10th June 2014 seeking extension of time to lodge an application for restoration of the appeal was dismissed with costs

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 102(1) and proviso to sub-rule (1)
  • Appellate Jurisdiction ActSections 3A and 3B
  • Constitution of Kenya, 2010Article 159 (including Article 159(2)(d))

Cases cited (13)

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

    Rule 4 discretion is unfettered; relevant but not exhaustive factors for extension of time

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

    Factors relevant to extension of time under Rule 4

  • Mwangi vs Kenya Airways Ltd
    [2003] KLR 486

    Factors relevant to extension of time under Rule 4

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

    Factors relevant to extension of time under Rule 4

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

    Mistakes of counsel may be pardonable; the court should rectify mistakes 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 in interpretation and exercise of discretion; but does not uproot established principles

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

    Interpretation of Article 159; courts must not aid parties who show scant respect for rules and timelines

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

    Dicta of Kiage, JA on Article 159 and eschewing defeatist technicalities without overthrowing rules of procedure

  • 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 all procedural shortfalls and applies on a case-by-case basis

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

    Rules of court must prima facie be obeyed; some material must exist to justify extension of time

  • Savill v Southend Health Authority
    [1995] 1 WLR 1254

    Restatement of Ratnam principles on extension of time

  • Rajesh Rughani –Vs- Fifty Investment Ltd. & Another
    (2005) eKLR

    Mere inaction by an advocate is not an excusable mistake; client has a duty to pursue its matter

  • Bains Construction Co. Ltd. -Vs- John Mzare Ogowe
    2011 eKLR

    Where an agent-counsel fails to perform a vested duty, the principal bears the consequences

On appeal from
High Court of Kenya at Nairobi, Milimani Commercial Courts
H.C.C.C. No. 2047 of 2000
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules; Sections 3A and 3B of the Appellate Jurisdiction Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Habo Agencies Limited v Wilfred Odhiambo Musingo", Case Analysis (2015). Civil Appeal (Application) No. 124 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/987/eng@2015-01-16

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