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Court of AppealDismissedNot stated in judgment (Notice of Motion dated 20th July 2019)

Church of God East Africa & another v Dinah Buluma [2019] KECA 330 (KLR)

Court of Appeal of Kenya
1 October 2019
2,741 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to excuse a delayed appeal, holding that blaming your lawyer and failing to follow up your own case are not acceptable explanations.

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 Kisumu (Otieno-Odek, JA) on a Notice of Motion dated 20th July 2019 seeking extension of time under rule 4 of the Court of Appeal Rules to file and serve a Notice of Appeal against a judgment of the Employment and Labour Relations Court delivered on 24th January 2019. The applicants, a religious and educational institution represented throughout by counsel, attributed a delay of over four months in lodging the Notice of Appeal (filed 27th June 2019) to their former advocate's failure to inform them of the judgment, which they learnt of only in June 2019. The respondent opposed, noting counsel was present when judgment was delivered and that the dispute had been in court since 2012. Applying Salat, Leo Sila Mutiso and Abdul Aziz Ngoma, the Court required the applicants to account for every day of delay. It held that blaming a former advocate is not sufficient reason where the litigant was represented at delivery and took no steps to follow up, citing Rajesh Rughani, Bains Construction and Habo Agencies. It further found no explanation for the new advocate's inaction between 7th March and 27th June 2019, applying Donald O. Raballa. Finding no extenuating circumstances, the Court declined to exercise its discretion and dismissed the motion with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicants satisfactorily explained the reason for the six-month delay in filing the application
  2. 2.Whether the six-month delay is inordinate
  3. 3.Whether the application for extension of time was brought without undue delay
  4. 4.Whether the applicants demonstrated that the respondent stands to suffer no prejudice if extension is granted

Key legal issues

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01

Whether blame on a former advocate constitutes sufficient reason for extension of time

Holding

No. Blaming an advocate's failure to inform the client of a judgment is not sufficient reason where the client was represented when judgment was delivered and took no steps to follow up.

Reasoning

The Court relied on Rajesh Rughani, Bains Construction and Habo Agencies to hold that a party cannot simply blame counsel; parties must show interest in and follow up their cases even when represented. The applicants were represented when the judgment was read, and no steps of enquiry were demonstrated. Inadvertence must have its nature and quality explained, following Dilpack and Itute Ngui.

p. 4
02

Whether inaction by a newly instructed advocate can justify the delay

Holding

No. No explanation was given for the inaction of the new advocate between 7th March 2019 and 27th June 2019, and a court of equity frowns on such conduct.

Reasoning

Following Donald O. Raballa, new advocates must move with alacrity to save a situation caused by previous advocates' inaction. Here the applicants offered no averment explaining why the new counsel did not file the Notice of Appeal immediately after instructions on 7th March 2019, leaving an unexplained gap until 27th June 2019.

p. 3
03

Whether arguable prospects of success can of themselves amount to sufficient reason

Holding

No. Likelihood of success on appeal cannot of itself amount to sufficient reason for extension of time.

Reasoning

Applying Mugo v Wanjiru and Abdul Aziz Ngoma, sufficient reason must ordinarily relate to the inability or failure to take the step in time; prospects of success are only considered once sufficient reason is established.

p. 2

Legal principles established

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  • Extension of time under rule 4 is an equitable remedy available only to a deserving party, and an applicant must account for every single day of the delay
  • It is not a sufficient explanation for delay to state that counsel did not inform the client of the outcome of a case; a litigant must exercise diligence and follow up their case even when represented

Court orders

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  1. 1.The Notice of Motion dated 20th July 2019 be and is hereby dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Employment and Labour Relations Court
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (discretion to extend time)

Relief refused

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Extension of time to file and serve a Notice of Appeal

No sufficient and satisfactory explanation for the delay; the applicants did not follow up their case and their new advocate's inaction between 7th March 2019 and 27th June 2019 was unexplained

p. 4

Costs

The Notice of Motion dated 20th July 2019 be and is hereby dismissed with costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, the Notice of Motion dated 20th July 2019 be and is hereby dismissed with costs.
p. 4Final orders
It behooves a client/litigant to exercise diligence and follow up the progress and outcome of his/her case.
p. 4Litigant's duty to follow up case despite representation
I find that there are no extenuating circumstances that would allow me to exercise my jurisdiction and discretion to extend time to file and serve a Notice of Appeal in this matter.
p. 4Absence of extenuating circumstances
whereas the law does not set the minimum or maximum period of delay, in my view, an applicant is expected to account for every single day of the delay.
p. 2Accounting for every day of delay

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, "Church of God East Africa & another v Dinah Buluma [2019] KECA 330 (KLR)", Case Analysis (2019). Not stated in judgment (Notice of Motion dated 20th July 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/330/eng@2019-10-01

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