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Court of AppealDismissedNotice of Motion dated 15th October, 2018· [2019] KECA 276 (KLR)

Gloria Paolo v Pietro Scavo [2019] KECA 276 (KLR)

Court of Appeal of Kenya
31 October 2019
1,298 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to extend time to appeal because over two years of unexplained delay cannot be blamed on former lawyers.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Malindi, delivered by Sichale, JA sitting as a single judge, on a Notice of Motion dated 15th October, 2018 by Gloria Paolo seeking leave to extend time for filing a Notice of Appeal dated 13th July, 2015 against a ruling of Angote, J delivered on 26th June, 2015 in civil proceedings against Pietro Scavo. The applicant attributed the delay to her former advocates, Kilonzo Aziz Advocates, and relied on the principle that an advocate's mistake should not be visited on a client, invoking the overriding objective under Article 159 of the Constitution. The respondent opposed, noting that neither the Notice of Appeal nor a draft Memorandum of Appeal was annexed, and that the main suit remained pending. The court rehearsed the established Rule 4 factors: length of and reason for delay, prejudice, conduct of parties, and possible chances of the intended appeal, stressing that a single judge does not definitively determine merits. Although the lapses in annexures suggested counsel's laxity, the decisive factor was that the applicant's current advocates came on record on 21st July, 2016 yet took no step until 15th October, 2018, a delay of over two years for which no explanation was offered. Blame on previous counsel did not excuse this period. The motion was found bereft of merit and dismissed with costs to the respondent.

Key legal issues

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01

Whether the delay in seeking extension of time was inordinate and explained

Holding

The delay of over two years between current counsel coming on record and the filing of the motion was inordinate and unexplained; blame on previous counsel did not account for the current counsel's own inaction

Reasoning

The court accepted there were lapses by the applicant's counsel in not annexing the Notice of Appeal or a draft Memorandum of Appeal. More fundamentally, although the applicant blamed former advocates (Kilonzo Aziz Advocates), the firm of Gikandi & Co. Advocates came on record on 21st July, 2016 and took no step until 15th October, 2018. No explanation was offered for that period of delay, which the court found dispositive against the exercise of discretion.

p. 2
02

Whether the absence of an annexed Notice of Appeal and draft Memorandum of Appeal was fatal

Holding

The omission suggested laxity on the part of the applicant's counsel but was not, standing alone, determinative; the unexplained inordinate delay was

Reasoning

The respondent pointed out that the Notice of Appeal, the impugned ruling and a draft Memorandum of Appeal were not annexed, depriving the court of a basis to assess the prospects of the intended appeal. Counsel for the applicant conceded the mistake. The court treated these lapses as indicative of laxity, but grounded the dismissal principally on the unexplained inordinate delay between counsel coming on record and filing the motion.

p. 2

Legal principles established

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  • The discretion of a single judge under Rule 4 of the Court of Appeal Rules is wide and unfettered, and is exercised by weighing factors including length of and reason for delay, prejudice, conduct of parties, and possible chances of success of the intended appeal
  • A single judge determining an extension-of-time application does not definitively determine the merits of the intended appeal; the merits consideration is prefaced with 'possibly'
  • The court's discretion to extend time under Rule 4 arises only once sufficient reason for extension has been established; only then can prejudice and prospects of success be considered
  • Where delay is inordinate, the applicant must give a plausible explanation to the satisfaction of the court, including steps taken to come to court as soon as practicable

Court orders

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  1. 1.The Notice of Motion dated 15th October, 2018 seeking extension of time to file a Notice of Appeal is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159
  • Court of Appeal RulesRule 4

Cases cited (4)

  • Karny Zaharya & Another vrs. Shalom Levi
    C. Appl. No. 80 of 2018
  • Athuman Nusura Juma vs. Afwa Mohamed Ramadhan
    CA No. 227 of 2015
  • Abdul Azizi Ngoma vrs. Mungai Mathayo
    [1976] Kenya LR 61
  • Aviation Cargo Support Limited vrs. St. Mark Freight Services Limited
    CA No. Nai of 2013
On appeal from
High Court of Kenya
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (discretion of a single judge to extend time)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Gloria Paolo v Pietro Scavo [2019] KECA 276 (KLR)", Case Analysis (2019). Notice of Motion dated 15th October, 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/276/eng@2019-10-31

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