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Court of AppealPartially Allowed· [2019] KECA 877 (KLR)

George Gakio Kinoga v Annah Wamaitha Githinji [2019] KECA 877 (KLR)

Court of Appeal of Kenya
8 March 2019
3,814 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal gave a litigant more time to appeal after his advocate failed to notify him, holding clients shouldn't pay for lawyers' mistakes.

What this practically means

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Executive summary

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This is a ruling of a single Judge of Appeal (Nambuye, JA) delivered at Nairobi on 8th March 2019 on a Notice of Motion dated 6th April 2018 and filed 6th November 2018, seeking extension of time to file and serve a Notice of Appeal and Record of Appeal against a High Court ruling by M.W. Muigai, J. delivered on 10th November 2017 in a succession matter concerning LR No. Dagoretti/Kangemi/776. The applicant explained that his former advocate never notified him of the ruling; he learned of it only on 15th March 2018 through the respondent's advocate, by which time the fourteen-day period under Rule 75 of the Court of Appeal Rules had lapsed. The application was unopposed. The court held that the applicant had mis-cited section 76 of the Law of Succession Act and Rule 44 of the Probate and Administration Rules, but that failure to cite the correct provision, Rule 4 of the Court of Appeal Rules, was curable under Article 159(2)(d). Weighing the settled Rule 4 factors - length and reason for delay, arguability of the intended appeal and prejudice - the court found the delay excusable, attributing it to the former advocate's inadvertence and holding that a litigant should not be penalized for his advocate's mistakes. The draft memorandum raised arguable grounds, and no prejudice was shown. The application was allowed; the applicant was granted fourteen days from the ruling to file and serve a Notice of Appeal and thereafter to proceed according to law. No express costs order was recorded.

Key legal issues

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01

Whether the delay of approximately seven months and twenty days in filing the application was excusable

Holding

Yes - the delay was explained by the applicant having to source funds and engage another advocate after learning of the ruling through no fault of his own; it was excusable in the interest of justice

Reasoning

The applicant learned of the ruling only on 15th March 2018 because his former advocate failed to notify him. The application was dated 21 days later but filed seven months and twenty days after notification. The court found the delay sufficiently explained by the need to source funds and instruct new counsel, and attributed the root cause to the former advocate's inadvertence, so the applicant should not be penalized.

p. 4
02

Whether the intended appeal is arguable

Holding

Yes - the draft memorandum of appeal raises arguable grounds including misappreciation of the case, undue weight to the respondent's case, burden of proof and failure to follow precedent

Reasoning

Applying the settled principle that an arguable appeal need not ultimately succeed, the court examined the draft memorandum of appeal grounds - failure to appreciate the case, undue weight to the respondent, shifting the burden of proof on whether the respondent was a wife to the deceased, and ignoring judicial precedents - and found the intended appeal arguable.

p. 4
03

Whether the correct enabling provision must be cited for the application to succeed

Holding

No - failure to cite Rule 4 of the Court of Appeal Rules is a curable defect under Article 159(2)(d); the court proceeds on the merits under Rule 4

Reasoning

The applicant cited section 76 of the Law of Succession Act and Rule 44 of the Probate and Administration Rules, which concern revocation of grants and were irrelevant. The correct provision was Rule 4 of the Court of Appeal Rules, but under Article 159(2)(d) justice is administered without undue regard to procedural technicalities, so the mis-citation did not defeat the application.

p. 2
04

Whether the right of appeal can be withheld

Holding

No - the right to a hearing is constitutionally entrenched and can only be withheld in exceptional circumstances; succession matters particularly favour ventilation of grievances on appeal

Reasoning

The court invoked the principle from Richard Nchapi Leiyagu v IEBC that the right to a hearing is a well-protected constitutional right and cornerstone of the rule of law. As the matter concerned succession and the application was unopposed, it was fair to capacitate the applicant to appeal against the ruling.

p. 4

Legal principles established

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  • Non-compliance with Rule 75 of the Court of Appeal Rules does not per se shut out a litigant; the court may extend time under Rule 4, and failure to cite the correct enabling provision is curable under Article 159(2)(d).
  • A litigant should not be penalized for the mistakes or inadvertence of the advocate then on record.
  • An arguable appeal need not be one that must ultimately succeed.

Court orders

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  1. 1.The applicant has fourteen (14) days of the date of the ruling to file and serve a notice of appeal and thereafter to proceed according to law

Authorities

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Legislation

  • Constitution of KenyaArticle 159, including Article 159(2)(d)
  • Appellate Jurisdiction ActSections 3A and 3B
  • Law of Succession Act, Cap 160Section 76
  • Probate and Administration RulesRule 44(1) & (2)
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 75(1), (2), (3) and (6)

Cases cited (25)

  • Jaldesa Tuke Dabelo versus IEBC & Another
    [2015] eKLR
  • Raila Odinga and 5 others versus IEBC & 3 Others
    [2013] eKLR
  • Lemaken Arata versus Harum Meita Lempaka & 2 others
    eKLR
  • Patricia Cherotich Saw versus IEBC & 4 others
    [2015] eKLR
  • City Chemist (NB1) Mohamed Kasabuli suing for and on behalf of the Estate of Halima Wamukoya Kasabuli versus Orient Commercial Bank Limited
    Civil Application No. Nai 302 of 2008 (UR.199/2008)
  • Kariuki Network Limited & Another versus Daly & Figgis Advocates
    Civil Application No. Nai 293 of 2009
  • Edith Gichugu Koine versus Stephen Njagi Thoithi
    [2014] eKLR
  • Nyaigwa Farmers’ Co-operative Society Limited versus Ibrahim Nyambare & 3 Others
    [2016] eKLR
  • Hon. John Njoroge Michuki & Another versus Kentazuga Hardware Limited
    [1998] eKLR
  • Cargil Kenya Limited Nawal Versus National Agricultural Export Development Board
    [2015] eKLR
  • Fakir Mohamed versus Joseph Mugambi & 2 Others
    CA Nai. 332 of 2004
  • Paul Wanjohi Mathenge versus Duncan Gichane Mathenge
    [2013] eKLR
  • Joseph Wanjohi Njau versus Benson Maina Kabau
    Civil Application No. 97 of 2012
  • Richard Nchapi Leiyagu versus IEBC & 2 Others
    Civil Appeal No. 18 of 2013
  • Julius Kamau Kathekea vs. Weruguru Katheka Ayaga and 2 others
    [2013] eKLR
  • Paul Wanjohi versus Dancan Gichane Mathenge
    [2013] eKLR
  • Gachuhi Muithanji versus Mary Njuguna
    [2014] eKLR
  • Dominic Mutei Kombo and 2 others versus Kyule Makau
    [2015) eKLR
  • George Mwende Muthoni vs Mama Day Nursery and Primary School, Nyeri
    CA No. 4 of 2014 (UR)
  • Aviation Cargo Support Limited vs. St Marks Freight Services Limited
    [2014] eKLR
  • Christopher Mugo Kamotho vs. the Hon. Attorney General
    [2009] eKLR
  • Lee G. Muthoga versus Habib Zurich Finance (K) Ltd & Another
    Civil Application No. Nai 236 of 2009
  • CFC Stanbic Limited vs. John Maina Githaiga & another
    [2013] eKLR
  • National Bank of Kenya Ltd & 2 others vs. Kisumu Papermills Limited
    [2006) eKLR
  • Murai vs. Wainaina (No.4)
    [1982] KLR, 38
On appeal from
High Court of Kenya
Not stated (succession cause concerning LR No. Dagoretti/Kangemi/776)
Jurisdiction invoked
Article 159 of the Constitution; sections 3A and 3B of the Appellate Jurisdiction Act; Rule 4 of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "George Gakio Kinoga v Annah Wamaitha Githinji [2019] KECA 877 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/877/eng@2019-03-08

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