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Court of AppealDismissedCivil Application (Rule 4) arising from ELC Number 108 of 2018, Kajiado· [2020] KECA 387 (KLR)

Johnson Kimathi Kabura & another v Makokoyo Nchoke Leshani & 5 others [2020] KECA 387 (KLR)

Court of Appeal of Kenya
7 August 2020
1,639 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 refused to forgive a nine-month appeal delay, confirming that clients—not their lawyers—bear the consequences of missed deadlines.

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 on a Notice of Motion dated 6th February, 2020 brought under Rule 4 of the Court of Appeal Rules, seeking extension of time to file a notice and record of appeal against a ruling delivered on 8th May, 2019 in ELC Number 108 of 2018 (Kajiado), which dismissed the applicants' application to review and set aside a consent order adopting a joint survey report on the boundary between their parcel Kajiado/Kaputiei North/4101 and the respondents' parcel Kajiado/Kaputiei North/959. The applicants blamed their former advocate, who allegedly failed to communicate the outcome and lacked a practicing certificate for 2019, and asserted the intended appeal was arguable because 25 acres had been illegally hived from their land. The respondents, including Philip Rakita, opposed, pointing to the applicants' representation throughout and the undisputed four-year delay in challenging the 2014 consent order. The court applied the settled Rule 4 parameters from Fakir Mohamed v Joseph Mugambi and Leo Sila Mutiso v Rose Hellen Wangari Mwangi. It found the intended appeal not arguable, and held that no sufficient reason for the delay was given: the consequences of a chosen advocate's professional failures must be borne by the litigant, who also has a duty to diligently follow up their own case, and the applicants could not explain the near two-month delay between learning the outcome in November 2019 and filing in February 2020. The application was dismissed with costs to the 1st to 3rd respondents. This is not an appeal decision and sets aside no decision below; its binding value lies in the restatement of the extension-of-time principles and the litigant's personal responsibility for counsel's lapses.

Key legal issues

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01

Test for extension of time under Rule 4

Holding

The discretion under Rule 4 is exercised judicially following the Fakir Mohamed and Leo Sila Mutiso parameters: length of delay, reason for delay, chances of appeal succeeding, and prejudice to the respondent

Reasoning

The court restated that Rule 4 discretion is unfettered but must be exercised judicially, guided by the well-known factors in Fakir Mohamed v Joseph Mugambi and Leo Sila Mutiso v Rose Hellen Wangari Mwangi, which it quoted at length as the governing parameters for the application.

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02

Chances of the appeal succeeding

Holding

The intended appeal was not arguable: the applicants waited four years after the 2014 consent order before seeking review in 2019, and the factual history was undisputed

Reasoning

The court cautioned against delving into merits but performed a cursory assessment, finding the undisputed four-year delay in challenging the consent order fatal to any claim of arguability, and the alleged errors of the ELC judge insufficient to demonstrate a viable appeal.

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Sufficiency of reasons for delay

Holding

No sufficient reason was shown: blame of the former advocate, including failure to renew his practicing certificate, cannot be visited on the respondents or the court, and the applicants further delayed nearly two months after learning the outcome

Reasoning

The court held that consequences of counsel's failures must be borne by the litigant who chose the counsel; the applicants also failed to disclose diligent follow-up steps and could not explain the near two-month gap between perusing the file on 25th November, 2019 and filing the application on 7th February, 2020.

p. 3

Legal principles established

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  • A litigant bears the consequences of their chosen counsel's professional failures, and bears a duty to diligently follow up their own case at all stages; blaming an advocate alone does not justify extension of time

Court orders

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  1. 1.The application is dismissed
  2. 2.Costs of the application awarded to the 1st to 3rd respondents

Authorities

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Legislation

  • Court of Appeal RulesRule 4

Cases cited (2)

  • Fakir Mohamed vs. Joseph Mugambi & Two Others
    Civil Application No. Nai. 332 of 2004
  • Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi
    (1999) 2 EA 231
On appeal from
High Court of Kenya at Kajiado (Environment and Land Court)
ELC Number 108 of 2018
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time)

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, "Johnson Kimathi Kabura & another v Makokoyo Nchoke Leshani & 5 others [2020] KECA 387 (KLR)", Case Analysis (2020). Civil Application (Rule 4) arising from ELC Number 108 of 2018, Kajiado. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/387/eng@2020-08-07

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