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Court of AppealAllowedCivil Application No. NAI 274 of 2016 (implied from the appeal; motion dated 15th May, 2017, lodged 19th May, 2017)· [2019] KECA 932 (KLR)

LSG Lufthansa Service Europa/Afrika GmBH & another v Eliab Muturi Mwangi (Practicing in the name and style of Muturi Mwangi & Associates Advocates) [2019] KECA 932 (KLR)

Court of Appeal of Kenya
22 February 2019
2,430 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed Lufthansa companies more time to file their appeal record, ruling a lawyer's honest mistake shouldn't block justice.

What this practically means

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Executive summary

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This was a single-judge application under Rules 4 and 82 of the Court of Appeal Rules by LSG Lufthansa Service Europa/Afrika GmBH and LSG SKY Chefs Kenya Limited seeking extension of time to file their record of appeal against a High Court ruling of 29th January 2016 in Civil Case No. 154 of 2014, which compelled two individuals to answer interrogatories. The record of appeal was filed on 29th November 2016, beyond the 60-day period. The respondent opposed, arguing the notice of appeal was deemed withdrawn under rule 82(1), questioning the authenticity of a letter bearing inconsistent dates, and alleging lack of candour. Kantai, JA applied the classic four-factor test in Leo Sila Mutiso v Rose Hellen Wangare Mwangi. The court computed time from 1st September 2016 when proceedings were ready for collection, finding a delay of less than 30 days which was neither unreasonable nor inordinate. Counsel's candid admission that he mistakenly believed a certificate of delay was required before filing was accepted, the court adopting Madan, JA's dictum in Belinda Murai that mistakes by lawyers do not close the door of justice. The intended appeal was found arguable on whether non-parties can be compelled to answer interrogatories. No prejudice was found, the parties having cross-appealed and consented to stay. The motion was allowed with time extended and the record deemed duly filed; costs of Kshs 15,000 were awarded to the respondent, payable within 15 days.

Key legal issues

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01

Whether the delay in filing the record of appeal was inordinate and explained

Holding

The relevant time runs from when the proceedings were ready for collection (1st September 2016); the delay of less than 30 days thereafter was not inordinate and was explained, including by counsel's mistaken belief that a certificate of delay was required before filing.

Reasoning

The court computed the 60-day period from 1st September 2016 when the proceedings were ready and collected, expiring about 1st November 2016; the record was filed 29th November 2016, a delay of less than 30 days. Counsel candidly admitted mistaking the rules, and relying on Belinda Murai, the court held a mistake by a lawyer is pardonable in the interests of justice.

p. 3
02

Whether the intended appeal had chances of success

Holding

The court found it arguable whether non-parties to a suit can be compelled to answer interrogatories, so the appeal had a chance of success.

Reasoning

The High Court had compelled two directors to answer interrogatories. The judge noted the persons compelled appeared to be non-parties to the suit and considered it arguable that non-parties cannot be ordered to answer interrogatories, which sufficed under the Sila Mutiso principles.

p. 3
03

Whether the respondent would suffer prejudice if the application was granted

Holding

No prejudice would arise; the parties had cross-appealed, the High Court suit was stayed by consent, and any prejudice could be compensated in costs.

Reasoning

Both parties had appealed the ruling; the suit was stayed by consent with conditions met, including deposits and payment of fees. Any residual prejudice was adequately compensated by costs, which were awarded to the respondent.

p. 3

Legal principles established

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  • In deciding an extension of time application under rule 4 the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.
  • A mistake of law by counsel, even a blunder by an experienced lawyer, does not close the door of justice where the interests of justice dictate rectification.

Court orders

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  1. 1.Extension of time granted for filing the record of appeal
  2. 2.The record of appeal filed on 29th November, 2016 deemed as duly filed
  3. 3.Record of appeal, if not served, to be served on the respondent within 7 days
  4. 4.Costs of the motion granted to the respondent, assessed at Kshs 15,000/=, payable within 15 days, default execution to issue

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 82(1)

Cases cited (2)

  • Leo Sila Mutiso vs. Rose Hellen Wangare Mwangi
    Civil Application No. NAI 255 of 1997 (ur)
  • Belinda Murai & 9 others vs. Amos Wainaina
    [1979] eKLR
On appeal from
High Court of Kenya
High Court Civil Case No. 154 of 2014
Jurisdiction invoked
Rules of this Court (Court of Appeal Rules), Rules 4 and 82 - application for extension of time to file record of appeal

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, "LSG Lufthansa Service Europa/Afrika GmBH & another v Eliab Muturi Mwangi (Practicing in the name and style of Muturi Mwangi & Associates Advocates) [2019] KECA 932 (KLR)", Case Analysis (2019). Civil Application No. NAI 274 of 2016 (implied from the appeal; motion dated 15th May, 2017, lodged 19th May, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/932/eng@2019-02-22

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