George Kiptabut Lelei & another v Fanikiwa Limited [2019] KECA 239 (KLR)
The bottom line
#Kenya's Court of Appeal let delayed appellants proceed because they had instructed their lawyer, but ordered that lawyer to personally pay the costs of the application.
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 applicants offered a sufficient explanation for the delay of about seven months between delivery of the impugned ruling on 6th December 2018 and filing of the application on 17th July 2019
- 2.Whether the delay is inordinate
- 3.Whether the omission by counsel to file the record of appeal should be visited upon the clients
Key legal issues
#Sufficiency of explanation for the seven-month delay
The explanation by counsel (indisposition) was insufficient because the medical documents predated the impugned ruling and no proof of illness after 6th December 2018 was shown; however, the applicants' own explanation that they had instructed counsel to lodge the appeal was sufficient.
The court separated the explanation given by the parties from that given by counsel. Counsel's medical evidence predated the ruling and thus proved nothing about the relevant period. The parties' evidence that they instructed their advocate, and that a Notice of Appeal was filed promptly, satisfied the Salat principles; the delay was not inordinate given the land subject matter and the unavailability of typed proceedings.
Whether a mistake or omission by counsel should be visited upon the client
In this matter it should not; the applicants had shown interest by giving instructions and a Notice of Appeal was filed, balanced against the constitutional right of access to justice and hearing under Article 159.
The court weighed authorities holding that parties must follow up their cases against decisions stressing that lengthy delays from advocates' mistakes should not always lead to dismissal. Founded on the constitutional imperative of access to justice, the applicants' instruction of counsel sufficed.
Applicability of Article 159 to cure procedural default
The delay in filing the record of appeal is a procedural matter capable of cure under Article 159; the Court's authority remains unfettered where technicalities impede the administration of justice.
Relying on Lemanken Aramat, the court held that procedural shortcomings affecting only the competence of a cause, not jurisdiction, may be cured in the exercise of discretion.
Service of the Notice of Appeal and non-filing of a certificate of delay
Objections based on non-service of the Notice of Appeal are for an appropriate application before a three-judge bench, and the absence of a certificate of delay was excused because typed proceedings had not been availed.
The court treated the service objection as not properly before it in a single-judge application, and noted the certificate of delay could not be obtained where the registry had not supplied proceedings.
Legal principles established
#- A plausible and satisfactory explanation for delay is the key that unlocks the court's discretion to extend time under Rule 4.
- Where a party has instructed counsel to lodge an appeal, the omission by counsel to file the record of appeal should not be visited upon the client.
- A certificate of delay in civil proceedings, when availed, should ipso jure be taken into account in computing time in an application for extension.
- Counsel should not depose to contentious issues where personal interest may stand in the way of effective prosecution of a matter.
Court orders
#- 1.Notice of Motion dated 17th July 2019 allowed
- 2.Leave granted extending time for the applicants to file the record of appeal against the ELC ruling delivered on 6th December 2018 in ELC Case No. 392 of 2015
- 3.Record of appeal to be filed and served within twenty one (21) days of the date of the order
- 4.Counsel for the applicants, Ms. Laureen Isiaho Sawe, to personally bear the costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Environment and Land Court (ELC)
- ELC Case No. 392 of 2015
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time discretion)
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.
Leave be and is hereby granted extending time for the applicants to file the record of appeal against the ruling delivered by the ELC court on 6 th December 2018 in ELC Case No. 392 of 2015. The record of appeal is to be filed and served within twenty one (21) days of the date hereof.
I hereby order counsel for the applicants Ms. Laureen Isiaho Sawe to personally bear the costs of this application.
a plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour.
the omission by counsel to file a record of appeal should not be visited upon a client.
Issues in the judgment
#Paragraph numbering is inconsistent - the numbering restarts mid-judgment (paragraphs 8, 9, 10 after 7 duplicate earlier numbers).
The judgment refers to the ruling being delivered on 6th December 2018 in one place and 6th December 2017 in another.
The case title of the parties is not stated in the judgment; only the names of the counsel and deponent appear, so the formal case caption cannot be verified from the text.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Kiptabut Lelei & another v Fanikiwa Limited [2019] KECA 239 (KLR)", Case Analysis (2019). Notice of Motion dated 17th July 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/239/eng@2019-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.