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Court of AppealAllowedCivil Application (Nairobi) - Notice of Motion dated 26th February 2020· [2020] KECA 361 (KLR)

Vishva Stone Suppliers Company Limited v RSR Stone [2006] Limited [2020] KECA 361 (KLR)

Court of Appeal of Kenya
7 August 2020
RNR. N. Nambuye
3,395 words in judgment
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The bottom line

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Kenya's Court of Appeal gave a client more time to appeal after their lawyer's delay, confirming innocent clients shouldn't suffer for their advocates' mistakes.

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 Nairobi, delivered by Nambuye, JA, on an application under Rule 4 of the Court of Appeal Rules seeking leave to file an appeal out of time against a ruling of Makau, J, in HCCC No. 388 of 2007 delivered on 20th December 2018. The applicant explained that a notice of appeal and letter bespeaking proceedings were filed on 29th January 2019, proceedings and a certificate of delay were supplied on 8th November 2019, but an unnamed clerk in counsel's office failed to file the record of appeal. The respondent opposed, citing unexplained and inordinate delay, an incompetent out-of-time notice of appeal with no validation prayer, and prejudice from prolonging thirteen years of litigation. The court restated the settled Rule 4 principles, including the Salat factors, and applied the George Mwende Muthoni benchmark on delay. It found the delay of one year, two months and seven days from the decision excusable, held that counsel's admitted fault should not be visited on the innocent client, and found the intended appeal arguable notwithstanding the absence of a draft memorandum. Noting the notice of appeal was incompetent but that no validation prayer had been made, the court invoked its inherent power under Rule 1(2) and Article 159(2)(d) to cure the default. The application was allowed: fourteen days to file a proper notice of appeal, sixty days to file the record, costs to abide the appeal, and the leave to lapse on default.

Key legal issues

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01

Whether the delay in filing the record of appeal was excusable

Holding

Yes; the delay of one year, two months and seven days from decision, and three months and fourteen days from receipt of the certificate of delay, was below the twenty months in the George Mwende benchmark and was attributable wholly to counsel.

Reasoning

The court measured the delay against the George Mwende Muthoni benchmark where twenty months' unexplained delay led to refusal. Here counsel accepted full responsibility, so the innocent client could not be blamed. The delay was therefore found excusable and the discretion under Rule 4 was exercised in the applicant's favour.

p. 4
02

Whether the absence of a prayer for validation of the out-of-time notice of appeal defeats the application

Holding

No; the court cured the omission using its inherent power and Article 159(2)(d), directing filing of a fresh notice of appeal.

Reasoning

The notice of appeal filed on 29th January 2019 was out of time even after applying Order 50 Rule 4 exclusions, making it incompetent. Although no validation prayer was made, the court held that procedural default by counsel should not defeat substantive justice and invoked Rule 1(2) inherent power to direct a fresh notice of appeal within fourteen days.

p. 4
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Whether the intended appeal was arguable absent a draft memorandum of appeal

Holding

Yes; the challenge to dismissal of a liquidated claim involving a colossal sum was arguable without a draft memorandum.

Reasoning

The court held that arguability can be gauged from other supportive evidence where no draft memorandum is annexed. The intended challenge to the dismissal of the applicant's liquidated claim raised a bona fide issue, and an arguable appeal need not necessarily succeed.

p. 4

Legal principles established

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  • The discretion under Rule 4 is unfettered and delay must simply be satisfactorily explained; there is no fixed maximum period.
  • Failure to attach a draft memorandum of appeal is not fatal to a Rule 4 application if arguability is shown from other material.
  • Where counsel takes full responsibility for default, the innocent client should not be denied extension of time.
  • A court may invoke inherent power and Article 159(2)(d) to cure the absence of a prayer for validation of an incompetent notice of appeal.

Court orders

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  1. 1.The applicant has fourteen (14) days from the date of the ruling to file and serve a proper notice of appeal.
  2. 2.The applicant has sixty (60) days from the date of the lodging of the notice of appeal to file and serve the record of appeal.
  3. 3.Costs of the application to abide the outcome of the intended appeal.
  4. 4.In default of either item 1 or 2, the leave granted herein to stand lapsed.
On appeal from
High Court of Kenya
HCCC No. 388 of 2007
Jurisdiction invoked
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 (4)

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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, "Vishva Stone Suppliers Company Limited v RSR Stone [2006] Limited [2020] KECA 361 (KLR)", Case Analysis (2020). Civil Application (Nairobi) - Notice of Motion dated 26th February 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/361/eng@2020-08-07

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