Kimoi Ruto & another v Samuel Kipkosgei Keitany & 5 others [2019] KECA 231 (KLR)
The bottom line
#Kenya's Court of Appeal gave litigants a second chance after their lawyer's delay, but ordered the advocate to personally pay costs.
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- 1.Whether the application is incompetent in view of the notice of appeal being deemed withdrawn by operation of Rule 83 of the Court of Appeal Rules, and whether the court can exercise its inherent power to validate the spent notice of appeal
- 2.Whether the applicants meet the threshold for extension of time under Rule 4 of the Court of Appeal Rules, considering the length of and reasons for the delay, prejudice to the respondents, and the arguability of the intended appeal
Key legal issues
#Whether a spent notice of appeal under Rule 83 CAR renders a Rule 4 application incompetent
The application was sustained: because the respondents had not cross-applied to strike out the lapsed notice, the court invoked its inherent powers under Rule 1(2) CAR to validate the spent notice, subject to the Rule 4 threshold being met.
The power under Rule 83 to deem a notice withdrawn is discretionary ('may'). Where neither party has moved under Rule 83, the court may invoke Rule 1(2) inherent power to breathe life into the notice. However, this residual power is sparingly invoked and only where no rule caters for the situation and the ends of justice demand it. Since counsel, not the applicants, was responsible for failing to seek validation, it would be unjust to render the application incompetent.
Whether the 858-day delay was satisfactorily explained and the Rule 4 threshold met
The delay of two years, six months and ten days was explained by counsel's inaction, admitted ill-advice and pursuit of political office, and it would be too punitive to penalize the applicants for their advocate's default; the intended appeal was arguable and the respondents suffered no compensable prejudice beyond costs.
Financial challenges were abandoned as no submissions supported them. The admitted failure of counsel - failing to include a prayer for validation of the lapsed notice and venturing into 2017 politics without advising the clients - was the major cause. The applicants had no control over their advocate's defaults. The 1st respondent holds title and faces no orders; inconvenience can be compensated by costs, which counsel agreed to pay personally. The intended appeal on customary land and inheritance rights was arguable.
Whether access to justice and the right to be heard outweighed the procedural lapse
The applicants' constitutionally entrenched right of access to justice, and the principle that a party should not be deprived of a hearing merely for failure to follow rules of procedure, weighed in favour of granting the indulgence.
The court relied on authority that the right to a hearing is constitutionally entrenched and the cornerstone of the rule of law, and that a court has power to relieve against a step obtained only by failure to follow rules of procedure where no judgment on the merits exists. Because the applicants laid a basis showing a claim on customary land and inheritance rights never adjudicated on merit, justice demanded they be accorded an opportunity to pursue their appellate rights.
Legal principles established
#- A notice of appeal that lapses under Rule 83 CAR, where no cross-application has been made to strike it out, may be revived or validated by the court's inherent power under Rule 1(2) CAR, but only where the ends of justice so demand.
- Article 159(2)(d) of the Constitution is not a panacea for all procedural lapses; rules of procedure must be adhered to and each case considered on its peculiar circumstances.
- An application under Rule 4 CAR must be anchored on a valid notice of appeal; an application anchored on a lapsed notice collapses as incompetent unless the notice is validated.
- The sins of an advocate should not be visited on an innocent litigant where the advocate failed to take a procedural step, and the interests of the parties must be balanced.
Court orders
#- 1.The applicants have fourteen (14) days of the date of the ruling to file and serve a notice of appeal
- 2.The applicants to file and serve the record of appeal within sixty days from the date of lodging of the notice of appeal
- 3.In default of the above, the application dated 10th December, 2018 and filed on 18th December, 2018 to stand dismissed
- 4.Costs of the application to be paid to the respondents personally by the applicants' advocate
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya (ELC), Eldoret
- Eldoret Land Court Case No. 149 of 2015 (ruling of 31st May, 2016 dismissing review application)
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time), supported by the inherent powers of the court under Rule 1(2) of the Court of Appeal Rules and Article 159(2)(d) of the Constitution of Kenya, 2010
Relief refused
#Unconditional extension of time without default consequences
Extension was granted conditionally, with the application standing dismissed if the applicants default on filing the notice of appeal and record of appeal
Costs
Costs of the application to be paid to the respondents personally by the applicants' advocate.
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.
The applicants have fourteen (14) days of the date of the ruling to file and serve a notice of appeal.
The applicants to file and serve the record of appeal within sixty days from the date of lodging of the notice of appeal to file a record of appeal.
In default of items 2 and 3 above, the application dated 10 th December, 2018 and filed on 18th December, 2018 to stand dismissed.
Costs of the application to be paid to the respondents personally by the applicants' advocate.
since the invalid notice has not been struck out, or the opposite parties cross applied for it to be struck out, the inherent power of the court is available to breathe life into it, through granting an order for leave either to file a fresh one or validate the now spent notice
this provision is not a panacea for all procedural lapses. Secondly, that rules of procedure were not made in vain. There is therefore need for them to be adhered to. And lastly that each case has to be considered on its peculiar circumstances.
the role of a court of law is to balance the interests of the parties before it without visiting the sins of an advocate on an innocent litigant.
Issues in the judgment
#The 1st and 4th respondents' replying affidavits are deponed to by Samuel Kipkosgei Keitany (1st respondent) and Rashid Ngaira, but Rashid Ngaira appears only as counsel for the 4th respondent in the submissions section, creating ambiguity as to whether he is a deponent on behalf of the 4th respondent or himself a party.
The Supreme Court authority in Salat is described as '(supra)' although it had not been cited earlier in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimoi Ruto & another v Samuel Kipkosgei Keitany & 5 others [2019] KECA 231 (KLR)", Case Analysis (2019). Eldoret Civil Application (unnumbered on record) - Notice of Motion dated 10th December, 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/231/eng@2019-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.