Teresia Wangare Kinuthia v PAS Communication Limited [2019] KECA 284 (KLR)
The bottom line
#Kenya's Court of Appeal refused to extend appeal filing time, ruling that blaming your lawyer for missed deadlines won't excuse your delay.
What this practically means
#Executive summary
#Key legal issues
#Length and explanation of the delay
A delay of nearly two months in filing a notice of appeal was inordinate, and the applicant's explanation - that time did not run until the vacation ended in January - was factually incorrect, implausible and probably false, since the fourteen days expired before the vacation began.
The decision was delivered on 23rd November 2018 and the fourteen days under Rule 75(2) expired around 7th December 2018, before the Christmas vacation and excluded days. The advice relied on was therefore of no relevance. The court found the explanation incredible and, combined with the conceded non-service of the notice of appeal, found a pattern of indolence disentitling the applicant to discretion.
Effect of blaming former advocates
Blaming one's advocates does not absolve a litigant from default; advocates are agents whose deeds and misdeeds bind the litigant, and it may be proper to let litigants carry the crosses they and their advocates have fashioned.
The court declined to adopt a rule that pointing a finger at legal advisers invariably triggers extension of time. Because the application seeks an exercise of equitable discretion, the applicant's own conduct - including failure to serve the notice of appeal even months later - could be weighed and led the court to refuse relief.
Chances of success of the intended appeal
Although the court need not consider arguability, the intended appeal had little prospect of success as the applicant was a stranger to the contract of sale between the respondent and her late mother, the registered owner.
The respondent purchased the land from the applicant's mother, who was the registered owner. The applicant was sued for refusing to give up possession and lacked capacity to question the sale or claim non-payment of consideration. Extending time would merely open the door to litigation encumbering the owner of land purchased for value at a stranger's instance.
Legal principles established
#- In a Rule 4 extension-of-time application, the single Judge exercises a judicial discretion guided by the Salat principles: length of delay, reason for delay, chances of appeal succeeding, and prejudice to the respondent; extension of time is not a right but an equitable remedy available to a deserving party.
- A litigant is bound by the deeds and misdeeds of his advocates as agents, and blame-shifting to counsel does not automatically entitle the litigant to extension of time.
Court orders
#- 1.The application dated 4th June, 2019 was dismissed
- 2.Costs of the application awarded to the respondent
- On appeal from
- Environment and Land Court
- ELC No. 160 of 2014 (Eldoret)
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time, single Judge)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Teresia Wangare Kinuthia v PAS Communication Limited [2019] KECA 284 (KLR)", Case Analysis (2019). Notice of Motion dated 4th June, 2019 (Civil Application, Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/284/eng@2019-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.