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Court of AppealAllowed· [2020] KECA 685 (KLR)

Resia Ene Nasotokini & 3 others v Stephen Ndungi Kinyanjui & another [2020] KECA 685 (KLR)

Court of Appeal of Kenya
8 May 2020
FSF. Sichale
1,483 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 four litigants a second chance to appeal because they never got notice of the judgment against them.

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 (Sichale, JA) on a Notice of Motion dated 13th November 2019 brought under Rule 4 of the Court of Appeal Rules by four applicants seeking extension of time to file a notice of appeal, memorandum of appeal and record of appeal against a judgment of Nyakundi J of the High Court at Kajiado delivered on 7th June 2019. The High Court had declined to confirm a grant of letters of administration and found that the two respondents held purchasers' interests in six and ten acres respectively of the suit property. The applicants explained the delay by the judgment having been delivered without notice to them, the judge retaining the file to correct errors after his transfer to Malindi, delayed receipt of the judgment copy, and an initial mistaken filing in the High Court. The respondents opposed, contending the delay was inordinate and unexplained, particularly after Mwita J advised the applicants on 24th July 2019 that the Court of Appeal was the correct forum, and that no draft memorandum of appeal had been annexed. The court applied the well-known Rule 4 factors from Leo Sila Mutiso v Rose Hellen Wangari Mwangi: length of delay, reason for delay, chances of appeal success, and prejudice to respondents. Holding that delivery of judgment without notice was a misdirection on the part of the court that could only be atoned for by enlargement of time, and that a litigant should not suffer for counsel's mistake, the court allowed the application. The notice of appeal was deemed filed upon payment of fees within 7 days, the record of appeal was to be filed within 45 days, failing which the application would stand dismissed. Costs were reserved to the intended appeal.

Key legal issues

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01

Whether the delay in filing the notice of appeal and the Rule 4 application was satisfactorily explained

Holding

The applicants offered sufficient explanation: judgment was delivered without notice to them, the file was with the judge for corrections, and they initially filed the application in the wrong forum.

Reasoning

The court found it undisputed that the applicants were unaware of the delivery date, as no notice was served. The file was retained by the judge transferred to Malindi to correct errors, delaying access to the judgment. The wrong-forum filing and the advice of Mwita J on 24 July 2019 were noted, but the court weighed most heavily the delivery of judgment without notice, holding that this misdirection by the court below could only be atoned for by enlarging time so the applicants could exercise their undoubted right of appeal.

p. 3
02

Whether failure to attach a draft Memorandum of Appeal defeats a Rule 4 application

Holding

It is not fatal to attach no draft Memorandum of Appeal to a Rule 4 application.

Reasoning

The 2nd respondent argued that no memorandum of appeal had been annexed. The court rejected this objection, relying on Paul Wanjohi Mathenge v Duncan Gichane Mathenge [2013] eKLR, holding that omission of a draft memorandum of appeal does not defeat an application under Rule 4 of the Court of Appeal Rules. The application was allowed notwithstanding this omission, with the notice of appeal deemed filed and a 45-day timeline set for the record of appeal.

p. 3
03

Whether mistake of counsel should bar enlargement of time

Holding

A litigant should not suffer for an advocate's mistake; the wrong-forum filing did not defeat the application.

Reasoning

Counsel for the applicants invoked the principle that the mistake of an advocate should not be visited upon a litigant. The court cited Lee G. Muthoga v Habib Zurich Finance (K) Ltd and Belinda Murai v Amos Wainaina, adopting Madan JA's statement that the door of justice is not closed because a lawyer of experience has made a mistake. Nevertheless, the court noted the applicants did not act promptly after being advised by Mwita J on 24 July 2019.

p. 2

Legal principles established

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  • In deciding an application to extend time 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 litigant should not be shut out of justice because of a mistake made by their advocate.
  • Failure to attach a draft Memorandum of Appeal is not fatal to an application made under Rule 4 of the Court of Appeal Rules.
  • Delivery of judgment without notice to a party is a misdirection that may be atoned for by enlargement of time so the party may exercise the right of appeal.

Court orders

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  1. 1.The Notice of Motion dated 13th November, 2019 is allowed
  2. 2.The annexed Notice of Appeal is deemed as filed upon payment of the requisite Court fees within 7 days from the date of the ruling
  3. 3.The Record of Appeal is to be filed within 45 days of the filing of the Notice of Appeal
  4. 4.Failure to comply with the timelines, the Notice of Motion dated 13th November, 2019 shall stand dismissed
  5. 5.Costs shall be in the intended appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 4

Cases cited (4)

  • Leo Sila Mutiso v. Rose Hellen Wangari Mwangi
    No. NAI. 255 of 1997 (Unreported)
  • Lee G. Muthoga versus Habib Zurich Finance (K) Ltd & another
    Civil Application No. NAI 236 of 2009
  • Belinda Murai & Others vs. Amos Wainaina
    (1978) LLR 2782 (CALL)
  • Paul Wanjohi Mathenge vrs. Duncan Gichane Mathenge
    [2013] eKLR
On appeal from
High Court of Kenya at Kajiado
Not stated in the judgment
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 (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, "Resia Ene Nasotokini & 3 others v Stephen Ndungi Kinyanjui & another [2020] KECA 685 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/685/eng@2020-05-08

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