Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Application No. E316 of 2020· [2021] KECA 553 (KLR)

Maragaret Gacigi Gecaga v Udi Mareka Gecaga & another [2021] KECA 553 (KLR)

Court of Appeal of Kenya
21 May 2021
2,776 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal allowed a late appeal, ruling that a short, well-explained delay and an advocate's mistake should not defeat a client's right to appeal.

What this practically means

#

Executive summary

#
This was a ruling of the Court of Appeal (Nambuye, J.A., sitting as a single Judge in chambers at Nairobi) on a Notice of Motion dated 8th October 2020 brought under Rule 4 of the Court of Appeal Rules and section 3A of the Appellate Jurisdiction Act. The applicant sought leave to file a notice of appeal out of time, or in the alternative that a notice of appeal filed and served on 26th August 2020 be deemed duly filed and served, against the ruling of the High Court (G. Nzioka, J.) dated 28th July 2020 in Nairobi HC Misc. No. E087 of 2018. The application was opposed by the respondents, who argued nondisclosure of material facts and inordinate delay. Applying the Salat principles on extension of time, the court found the delay of one month and twelve days not inordinate; accepted as reasonable the advocate's explanation that she had to await the full text of the ruling before deciding what to appeal, given Rule 75(3)'s requirement that a notice of appeal specify whether the appeal targets the whole or part of a decision; found the intended appeal arguable on the pleaded issue of fraudulent transfer of eight Old Muthaiga properties; and found no prejudice to the respondents. The advocate's failure to disclose the respondents' application E298 of 2020 was held not to be visited on an innocent client. The application was allowed: the applicant was granted fourteen days to lodge and serve a notice of appeal, with costs of the application in the intended appeal.

Key legal issues

#
01

Length and explanation of the delay

Holding

The delay of one month and twelve days was not so inordinate as to disentitle the applicant to relief, and awaiting the full text of the ruling was a reasonable explanation since Rule 75(3) requires a notice of appeal to state whether the appeal targets the whole or part of a decision

Reasoning

Although the ruling was delivered on 28th July 2020, its full text was only released on 26th August 2020. Rule 75(3) obliges a party filing a notice of appeal to indicate whether it is intended to appeal against the whole or part only of the decision. The applicant's advocate therefore had to await and peruse the full text before forming an informed decision on whether and to what extent to appeal. The court found that explanation plausible, reasonable and sustainable, and held the delay not inordinate.

p. 3
02

Arguability of the intended appeal

Holding

The intended appeal was arguable on the pleaded issue of fraudulent transfer of eight Old Muthaiga properties, despite the absence of a draft memorandum of appeal

Reasoning

Failure to annex a draft memorandum of appeal is not fatal; arguability can be discerned from other supporting facts. Paragraph 9 of the supplementary affidavit identified an intended ground touching on fraudulent transfer of eight properties in Old Muthaiga, including the applicant's matrimonial home. The court applied the principle that a single arguable point suffices and was satisfied the intended appeal was arguable.

p. 3
03

Alleged nondisclosure of material facts by the applicant's advocate

Holding

The advocate's failure to disclose the respondents' application E298 of 2020 could not be visited on the applicant, who was an innocent client, absent demonstrated fault or exceptional circumstances

Reasoning

Following the approach in Owino Ger, the court declined to punish a client for an advocate's procedural default where instructions had been timeously given. The same advocate who received the respondents' process swore the supporting and supplementary affidavits and should have disclosed it, but the court found it too punitive to deprive an innocent client of her constitutionally entrenched appellate right absent exceptional circumstances.

p. 3

Legal principles established

#
  • Extension of time is not a right of a party but an equitable remedy available to a deserving party at the court's discretion, and the applicant bears the burden of laying a basis for it
  • Failure to annex a draft memorandum of appeal is not fatal to an application for extension of time; arguability can be discerned from other supporting facts
  • One arguable point is sufficient for an intended appeal to qualify as arguable
  • A litigant's appellate right, being constitutionally entrenched, should not be defeated by an advocate's procedural default absent exceptional circumstances

Court orders

#
  1. 1.The applicant was granted fourteen (14) days from delivery of the ruling to lodge and serve a notice of appeal and thereafter proceed according to law
  2. 2.Costs of the application were granted in the intended appeal
On appeal from
High Court of Kenya
Nairobi HC Misc. No. E087 of 2018
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules and section 3A of the Appellate Jurisdiction Act, Cap 9 Laws of Kenya

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Maragaret Gacigi Gecaga v Udi Mareka Gecaga & another [2021] KECA 553 (KLR)", Case Analysis (2021). Civil Application No. E316 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/553/eng@2021-05-21

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