Mbuthu v Gitau & another (Civil Application 319 of 2019) [2021] KECA 239 (KLR)
The bottom line
#The Court of Appeal refused to revive a late appeal, confirming that every day of delay must be explained and that blaming your lawyer needs solid proof.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the full Court should interfere with the single Judge's exercise of discretion under Rule 4 of the Court of Appeal Rules in declining to extend time to file and serve the notice and record of appeal out of time
- 2.Whether the single Judge took into account irrelevant matters, failed to take into account relevant matters, misapprehended the evidence and law, or arrived at a plainly wrong decision
- 3.Whether the applicant explained the two-year delay in filing the intended appeal
- 4.Whether the applicant established that the fault of her former advocate should not be visited upon her
Key legal issues
#Test for interference by the full Court with a single Judge's Rule 4 discretion on reference
The full Court will interfere only if the single Judge took into account an irrelevant matter, failed to consider a relevant one, misapprehended the evidence or law, or was plainly wrong.
Adopting John Koyi Waluke vs. Moses Masika Wetangula and African Airlines International Ltd vs. PTA Bank, the Court held that a single Judge exercises the Rule 4 discretion on behalf of the whole Court. A party on reference cannot succeed merely by showing the full bench would have decided differently; the decision must be shown to be judicially flawed.
Whether the applicant explained the delay and established advocate's fault
The two-year delay was inordinate and unexplained; the claim of erroneous advice by counsel was a bare allegation unsupported by evidence.
While Owino Ger establishes that an advocate's faults should not ordinarily be visited on a client, the applicant produced no affidavit from the alleged former advocate nor any correspondence evidencing the erroneous advice. Moreover, the delay from 5th July 2019 (ruling of Onyiego, J.) to 30th September 2019 was wholly unexplained even on the applicant's own account.
Whether arguability of the intended appeal entitled the applicant to extension
The draft grounds were arguable, but arguability is not a stand-alone factor and does not by itself entitle an applicant to extension of time.
The Court accepted that an arguable appeal need not be one that must succeed; a single bona fide arguable ground suffices. However, the factor operates only in conjunction with the other Salat factors - length and explanation of delay, and prejudice to the respondent - all of which weighed against the applicant.
Prejudice to the respondents and election of procedures
The respondents stood to be prejudiced after nearly twenty years of litigation; the applicant, having elected the revocation route and lost, could not revert to an appeal.
The Court endorsed the single Judge's finding that a litigant who has two procedures open and elects one cannot fall back on the abandoned procedure after failing in the chosen one (Somportex; Mary Waruga Wokabi). The applicant's protest and revocation application having failed, the attempted appeal was a third bite at the cherry, to the respondents' prejudice.
Legal principles established
#- A full bench on reference may interfere with a single Judge's Rule 4 discretion only where the single Judge took into account an irrelevant matter, failed to take into account a relevant matter, misapprehended the evidence and the law, or arrived at a plainly wrong decision; it is not enough that the full bench would have reached a different result.
- Arguability of the intended appeal is not a stand-alone factor; it must be considered in conjunction with all the other factors for extension of time.
- Any delay, even for one day, must be explained, failing which it is inordinate.
Court orders
#- 1.The reference is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal of Kenya (decision of a single Judge, F. Sichale, J.A.)
- Notice of Motion dated 30th September, 2019; underlying Succession Cause No. 2070 of 2011 (High Court, Nairobi)
- Jurisdiction invoked
- Rule 55 of the Court of Appeal Rules (reference to the full Court from a decision of a single Judge)
Relief refused
#Extension of time to file and serve the notice and record of appeal out of time
The delay of two years was inordinate and unexplained; the applicant failed to adduce evidence supporting the claim of advocate's fault; the respondents would be prejudiced after nearly twenty years of litigation; and the applicant, having elected one procedure and failed, could not revert to the abandoned route of appeal
Costs
The reference was dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is not enough, for example, to show the full Court that had it been sitting in place of the single Judge, it would have arrived at a difierent result.
We therefore find this reference devoid of merit and dismiss it with costs to the respondent.
Any delay, however, even for one day, ought to be explained otherwise it is rendered inordinate.
A single bona fidearguable ground of appeal is suficient to satisfy this prerequisite.
the mistake alleged by the applicant only accounts for the period up to the delivery of the ruling by Onyiengo J. on 5th July, 2019. The remaining 88 days from 5th July, 2019 when the applicant’s application for revocation was dismissed to 1st October, 2019, when the instant application for extension was filed have not been explained.
Issues in the judgment
#The judgment inconsistently refers to the High Court judge who delivered the ruling of 5th July 2019 as 'Onyiego, J.' in most passages but as 'Onyiengo J.' in the passage quoted from the single Judge's ruling.
The judgment variously dates the intended impugned orders as 29th September, 2017 and 30th September, 2017, and the application as filed on 30th September, 2019 and 1st October, 2019.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbuthu v Gitau & another (Civil Application 319 of 2019) [2021] KECA 239 (KLR)", Case Analysis (2021). Reference to the Full Court from the ruling of Sichale, J.A. dated 8th May, 2020 (Notice of Motion dated 30th September, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/239/eng@2021-12-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.