Donald O. Raballa v Judicial Service Commission & Attorney General (Civil Application 10 of 2015) [2018] KECA 641 (KLR)
The bottom line
#Kenya's Court of Appeal refused to revive a late appeal, ruling that clients must personally follow up their cases, not just blame their lawyers.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the full Court on a reference may interfere with the single Judge's discretionary decision under Rule 4 refusing extension of time
- 2.Whether the single Judge took into account irrelevant factors or failed to consider relevant factors, misapprehended a point of law or fact, or arrived at a plainly wrong decision
- 3.Whether the delay in filing the notice of appeal and record of appeal was inordinate and sufficiently explained
- 4.Whether the delay was an excusable mistake of counsel that should not be visited on the applicant
Key legal issues
#Standard of interference with a single Judge's Rule 4 discretion on a reference
The reference is not an appeal; the full Court interferes only on established principles, with the onus on the applicant.
A reference under Rule 55(1)(b) is not an appeal. The single Judge exercises the wide discretion of the full Court, and his decision ought not be easily dislodged. Interference is justified only where an irrelevant factor was considered, a relevant factor ignored, a point of law or fact misapprehended, or where the decision is plainly wrong. The applicant bears the onus of demonstrating such breach, per Ramesh Shah v Kenbox Industries Limited.
Whether the delay was a mistake of counsel excusable in equity
The circumstances showed inaction, not an excusable mistake of counsel; parties must also follow up their own cases.
The erstwhile advocates filed a notice of appeal but never served it or filed the record; no affidavit from them explained the failure, so inaction could only be surmised. The new advocates likewise took some three months to draw and file the application without explanation. Blaming advocates is insufficient; the client has a duty to pursue the matter. The applicant, a former Resident Magistrate, was well acquainted with appeal procedure, making his lack of follow-up a relevant consideration.
Primacy of delay and its explanation over arguability
Period and reasons for delay take primacy; a meritorious appeal is a possible consideration and only rarely outweighs unexplained delay.
The Court endorsed the factors in Leo Sila Mutiso v Rose Hellen Wangari Mwangi and the Supreme Court's principles in Fahim Yasin Twaha v Timamy Issa Abdalla: extension of time is an equitable remedy for a deserving party who lays a basis to the Court's satisfaction. Although the intended appeal was found arguable, unexplained delay of many months meant the single Judge's refusal could not be faulted.
Legal principles established
#- On a reference, the full Court may interfere with a single Judge's Rule 4 discretion only where the single Judge considered irrelevant matters, failed to consider relevant ones, misapprehended a point of law or fact, or the decision is plainly wrong; the burden lies on the applicant.
- Where counsel is guilty of inaction after receiving instructions, that is not an excusable mistake of counsel, and the party bears responsibility to follow up their own case.
- The period of and reasons for the delay take primacy in an extension-of-time application; arguability of the intended appeal is only a possible consideration and rarely outweighs unexplained delay.
Court orders
#- 1.The reference is dismissed
- 2.No order as to costs, there having been no representation from the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal (decision of single Judge, Musinga, JA)
- not stated
- Jurisdiction invoked
- Rule 55(1)(b) of the Court of Appeal Rules - reference to full Court against decision of a single Judge
Relief refused
#Application to vary, discharge or reverse the single Judge's decision refusing extension of time to file and serve a notice of appeal and record of appeal out of time
The delay was inordinate and not sufficiently explained; the conduct disclosed inaction by counsel and the applicant rather than an excusable mistake of counsel
Costs
As there was no representation from the respondents, there will be no order as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
This reference is lacking in merit and we order that it be and is hereby dismissed.
The reference is, of course, not an appeal and we may only interfere with the exercise of the wide discretion bestowed on a single Judge under Rule 4 of the rules on the basis of sound principles.
If the Advocate was simply guilty of inaction that is not excusable mistake which the Court may consider with some sympathy
It is not enough for a party in litigation to simply blame the Advocates on record for all manner of transgressions in the conduct of the litigation. Courts have always emphasized that parties have a responsibility to show interest in and to follow up their cases even when they are represented by counsel.
We think the two factors must take primacy of consideration if the time table laid in the rules for conduct of court business will have any meaning.
As there was no representation from the respondents, there will be no order as to costs.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Agricultural Finance Corporation & another v Mwangi (Miscellaneous Application E032 of 2025) [2026] KEELC 1944 (KLR)[2026] KEELC 1944 (KLR)26 Feb 2026applied
- Kenya Private Universities Non Teaching Workers Union v Pan African Christian University (Civil Application E396 of 2023) [2025] KECA 143 (KLR)[2025] KECA 143 (KLR)7 Feb 2025applied
Cite this brief
#Cite this brief
Caselaw, "Donald O. Raballa v Judicial Service Commission & Attorney General (Civil Application 10 of 2015) [2018] KECA 641 (KLR)", Case Analysis (2018). Reference under Rule 55(1)(b) of the Court of Appeal Rules. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/641/eng@2018-05-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.