Lungui v Mwai ((Deceased)) (Civil Appeal 144 of 2019) [2021] KECA 655 (KLR)
The bottom line
#The Court of Appeal gave a litigant 30 more days to file an appeal record because his former lawyer's delay shouldn't punish him.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant's explanation for the delay in filing the record of appeal was reasonable
The delay was attributed to the applicant's previous advocates, and the applicant demonstrated he changed representation; the delay was reasonably explained.
The single judge considered the applicant's affidavit showing the trial court file was held in the Judge's chambers during an auxiliary stay application, and a letter dated 10th April 2019 evidencing a change of advocates. Relying on Catherine Njoguini Kenya & 2 Others v Commercial Bank of Africa, the judge found counsel's mistake should not be visited on the client and gave the applicant the benefit of doubt.
Whether the single judge should assess the arguability of the intended appeal
It is not the role of a single judge to determine the merits of the intended appeal; that is the province of the full Bench.
The respondent argued the intended appeal had no chance of success because the trial court had determined a point of law that a sale agreement over land registered in the name of a deceased person without a grant is null and void. The judge held that whether the appeal is arguable is for the Bench hearing the appeal, and having found reasonable explanation for the delay, granted the extension.
Legal principles established
#- Extension of time is not a right; it is an equitable remedy available to a deserving party at the discretion of the court, guided by the Salat principles, and a single judge does not determine the merits of the intended appeal.
- A mistake or omission of counsel should not be visited on the client when considering extension of time.
Court orders
#- 1.Extension of time granted to the applicant to file and serve the Notice and Record of Appeal
- 2.The applicant is given thirty (30) days from the date of the Ruling to file and serve the Notice and Record of Appeal
- 3.Costs of the application to abide the outcome of the intended appeal
- On appeal from
- Environment and Land Court, Machakos
- ELC 175 of 2014
- Jurisdiction invoked
- Section 7 of the Appellate Jurisdiction Act and Rule 4 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lungui v Mwai ((Deceased)) (Civil Appeal 144 of 2019) [2021] KECA 655 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/655/eng@2021-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.