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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedNotice of Motion dated 11th November, 2019· [2021] KECA 354 (KLR)

Mary Wambui Kibunja v James Ngugi & 1 other

Court of Appeal of Kenya
17 December 2021
3,021 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal allowed a late-served appeal notice because the delay was the advocate's clerk's fault, not the client's.

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 (Nairobi) by Nambuye, JA, delivered on 17th December 2021, on a Notice of Motion under Rule 4 of the Court of Appeal Rules, 2010. The applicant, whose ruling in a succession dispute was delivered on 9th October 2019, filed her notice of appeal timeously on 17th October 2019 but her advocate's clerk inadvertently served it on the respondents' advocates only on 26th November 2019, outside the seven days prescribed by Rule 77(1). She sought leave to serve out of time and validation of the service. The respondents opposed, contending the application was incompetent, that no reasonable explanation for the delay was given, that they would be dragged into a matter involving their late father's estate from which they did not benefit, and that the intended appeal was res judicata. Adopting the extension-of-time principles from County Executive of Kisumu v County Government of Kisumu, the court found the delay of one month and nine days not inordinate, the explanation of clerk's inadvertence excusable on the Owino Ger principle that an advocate's fault should not be visited on the client, the intended appeal arguable on multiple grounds, and no significant prejudice to the respondents. Invoking Article 159(2)(d) against procedural technicalities, the court granted leave to serve the notice of appeal out of time, extended time up to 26th November 2019, and ordered the costs of the application to abide the outcome of the appeal already filed.

Key legal issues

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01

Inordinate delay in service of notice of appeal

Holding

A delay of one month and nine days was not inordinate, being far shorter than delays in the decided cases where relief was refused

Reasoning

The notice of appeal was timeously filed on 17th October 2019 but served on 26th November 2019, one month and nine days late. Comparing this with a 20-month delay in George Mwende Muthoni and a six-month delay in Aviation Cargo Support, the court found the delay much less and therefore not inordinate, though this finding alone was not determinative.

p. 4
02

Explanation for delay - advocate's inadvertence

Holding

Inadvertence by the advocate's clerk is an excusable reason; the client who has no policing power over the advocate should not be punished for it

Reasoning

The process server swore an affidavit accepting responsibility for the inadvertence. Relying on Owino Ger, the court held that where non-compliance stems from the advocate's fault, the client is not to be pinned with it, since the applicant trusted the advocate and had no policing power over the discharge of those functions.

p. 5
03

Article 159(2)(d) and procedural technicalities

Holding

Shutting out an applicant whose default is mere inadvertence would amount to rendering justice on technicalities; Article 159(2)(d) is however not a panacea for all procedural ills

Reasoning

The court weighed the constitutional dictate that justice be administered without undue regard to procedural technicalities against the respondents' objection. Following the IEBC line of cases, it noted the jurisdiction under Article 159 is unfettered where technicalities impede justice, but is not a panacea, and found that refusing relief here would be deciding on a technicality.

p. 5
04

Right to be heard and prejudice to respondent

Holding

The constitutionally entrenched right to be heard outweighs the respondents' claimed prejudice, which was minimal

Reasoning

The court held the right to a hearing is constitutionally entrenched and the cornerstone of the rule of law, but must be weighed against prejudice to the opposite party. The respondents claimed no personal benefit from the estate and that they were being dragged into a matter between their late father and the applicant; the applicant had already filed a record of appeal, favouring a hearing on the merits.

p. 5

Legal principles established

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  • Extension of time under Rule 4 is discretionary and governed by the factors of length of delay, reason for delay, arguability of the appeal, prejudice to the respondent and public interest
  • A court will generally not visit an advocate's mistake or inadvertence on the client where non-compliance with the rules is due to the advocate's fault
  • A single arguable ground suffices to justify extension of time

Court orders

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  1. 1.The applicant is granted leave to serve the notice of appeal on the respondents out of time
  2. 2.The time within which to comply is extended up to 26th November, 2019, the date on which the notice of appeal was served on the respondents
  3. 3.Costs of the application to abide the outcome of the appeal already filed
On appeal from
High Court of Kenya
Jurisdiction invoked
Articles 20(3)(a),(b), 48, 50, 159(2)(d) and 259(1) of the Constitution; sections 3A and 3B of the Appellate Jurisdiction Act; Rules 4, 75 and 77 of the Court of Appeal Rules, 2010

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, "Mary Wambui Kibunja v James Ngugi & 1 other", Case Analysis (2021). Notice of Motion dated 11th November, 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/354/eng@2021-12-17

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