George Gakio Kinoga v Annah Wamaitha Githinji [2019] KECA 877 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the delay of approximately seven months and twenty days in filing the application was excusable
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
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.
Whether the intended appeal is arguable
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
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.
Whether the correct enabling provision must be cited for the application to succeed
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
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.
Whether the right of appeal can be withheld
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
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.
Legal principles established
#- 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
#- 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
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Collins Stuart & Another v Defendant (Chargee)[2019] KEHC 5732 (KLR)7 Jun 2019
Cite this brief
#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.