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Court of AppealPartially AllowedNot stated in the excerpt

Sultan Hasham Lalji v Diamond Hasham Lalji & 2 others [2019] KECA 133 (KLR)

Court of Appeal of Kenya
25 November 2019
4,685 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal excused a nine-day delay in filing an appeal record, ruling clients shouldn't pay for their lawyer's mistakes.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi, delivered by R. N. Nambuye, JA, on 25th November 2019, on a notice of motion dated 26th July 2017 brought under Rule 4 of the Court of Appeal Rules. The applicant, aggrieved by a ruling delivered on 19th April 2016 in HCCC No. 330 of 2013, had timely filed and served a notice of appeal and applied for typed proceedings. The record of appeal, filed on 7th June 2017, was nine days out of time, computed from 29th March 2017, the date shown in the certificate of delay. The applicant sought extension of time and an order deeming the record duly filed, with costs in the appeal. The respondents opposed, contending the delay was unexplained, that reliance on a certified copy of proceedings had no rule-based foundation, that the applicant came to equity with unclean hands, and that the appeal was incompetent for want of a decree extracted under Order 21 Rule 8 of the Civil Procedure Rules, and further cited prejudice from litigation spanning over thirty years, including the death of two witnesses. Applying the settled Rule 4 principles, including those restated by the Supreme Court in Nicholas Kiptoo Arap Korir Salat, the court held the nine-day delay not inordinate, attributed the miscomputation of the sixty-day period to the advocate on record, and declined to visit that default on the innocent client. The appeal was found arguable, and the prejudice pleaded did not outweigh the constitutionally entrenched right to be heard. The court made no findings on the competence of the appeal. The application was allowed with the relief sought and costs of the motion in the appeal.

Key legal issues

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01

Whether a nine-day delay in filing the record of appeal is inordinate

Holding

A delay of nine days is not inordinate and does not disentitle the applicant to extension of time

Reasoning

The court compared the nine-day delay with periods previously excused, including thirty-five days in Kagunda Waithathu and twenty-nine days in Service Europa/Africa, and concluded the delay was not inordinate so as to warrant withholding the exercise of discretion under Rule 4.

p. 4
02

Whether the applicant's explanation for the delay was adequate

Holding

The miscomputation of the sixty days flowed from the advocate's mistaken reliance on a certified copy of proceedings; the error is excusable and cannot be visited on the innocent client

Reasoning

No rule required the applicant to wait for a certified copy of proceedings before compiling the record. The mistake was the advocate's, made within the advocate's own knowledge. Following Belinda Murai, Chemwolo and related authorities, the court held the error excusable because vitiating the application would penalise an innocent litigant for counsel's default.

p. 6
03

Whether the appeal is arguable

Holding

The memorandum of appeal raises arguable issues notwithstanding their ultimate prospects

Reasoning

The court confined itself to the Rule 4 threshold, avoiding the merits. Grounds in the memorandum - including challenge to the sustaining of a preliminary objection and to revision of a previously decided issue - were held arguable, an arguable appeal being one that need not necessarily succeed.

p. 5
04

Whether prejudice to the respondents outweighs the applicant's right to be heard

Holding

The length of litigation, death of witnesses and abatement against one defendant do not outweigh the constitutionally entrenched right to a hearing

Reasoning

Weighing the thirty-year-old cause of action and death of two witnesses against the applicant's right to be heard, the court relied on Leiyagu, Mbaki and other authorities holding that the right to be heard is a valued and constitutionally protected right which should not be withheld without good reason.

p. 5
05

Whether the alleged nullity of the decree under Order 21 Rule 8 CPR defeats the application

Holding

The court made no finding on the competence of the appeal, as this is not an ingredient for Rule 4 relief

Reasoning

The respondents argued the appeal was incompetent for want of a valid decree. The court declined to determine competence, holding that the merits and competence of the appeal fall outside the Rule 4 prerequisites and steering clear of those matters.

p. 6

Legal principles established

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  • Extension of time is an equitable remedy available only to a deserving party, not a right
  • The burden of establishing entitlement to extension of time lies on the applicant
  • Rule 4 principles must be applied on a case-to-case basis
  • A litigant should not be penalised for an advocate's mistake; the court will not visit the sins of an advocate on an innocent client
  • A nine-day delay in filing a record of appeal is not inordinate

Court orders

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  1. 1.Extension of time limited to file and serve the record of appeal (as sought in prayer (a) of the motion)
  2. 2.The record of appeal lodged on 7th June 2017 be deemed as having been filed and served within the extended period (as sought in prayer (b))
  3. 3.Costs of and incidental to the motion be in the appeal (as sought in prayer (c))
On appeal from
High Court of Kenya
HCCC No. 330 of 2013
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (CAR)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Sultan Hasham Lalji v Diamond Hasham Lalji & 2 others [2019] KECA 133 (KLR)", Case Analysis (2019). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/133/eng@2019-11-25

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