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Court of AppealPartially AllowedCivil Application No. 73 of 2020· [2021] KECA 974 (KLR)

Paul Korir Sawe & 1 other v Salina C. Sawe

Court of Appeal of Kenya
19 February 2021
3,307 words in judgment
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The bottom line

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Kenya's Court of Appeal excused a late-served appeal because the clients' advocate caused the delay, but confirmed only the Deputy Registrar can approve supplementary appeal records.

What this practically means

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Executive summary

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This is a single-judge (in chambers) ruling of the Court of Appeal at Eldoret, delivered by Nambuye, JA, on a Notice of Motion dated 16th July 2020 by Paul Korir Sawe and Harron Kipkoech Sawe, applicants in an intended appeal against the judgment of H. A. Omondi, J. of the High Court at Eldoret dated 14th August 2019 in Eldoret HC Succession Cause No. 369 of 2004, a family land-succession dispute over parcel No. Nandi Cheptil/138. The applicants sought leave to extend time to serve a record of appeal filed on 28th February 2020 but served only on 28th May 2020, to have the record deemed properly filed and served, and leave to file a supplementary record of appeal, invoking Rule 4 of the Court of Appeal Rules, the overriding objective under sections 3A and 3B of the Appellate Jurisdiction Act, and Article 159(2)(d) of the Constitution. The respondent opposed, alleging inordinate unexplained delay, laches, and an alleged mutual settlement of the land. The court distilled the familiar Rule 4 principles, including those restated by the Supreme Court in Salat, and also applied the right of access to justice. It excused the delay, attributing the advocate's default to the advocate and not the clients, and found the appeal arguable and no prejudice established. Prayer 2 was struck out because Rule 88 jurisdiction vests in the Deputy Registrar. The application was allowed: time for service was extended to 28th May 2020, the record of appeal was deemed properly filed, and costs were awarded in the main appeal. The decision below was not disturbed at this interlocutory stage.

Key legal issues

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01

Whether the delay of some three months in serving the record of appeal should be excused

Holding

The delay was excused and attributed to the applicants' advocate, whose bereavement could not be visited on the clients

Reasoning

The applicants timeously filed the notice of appeal and applied for proceedings; a certificate of delay brought the application within the proviso to Rule 82(1). The unexplained advocate's bereavement was the pleaded reason for the failure to serve, and following Owino Ger, the court declined to make the clients suffer for the advocate's default, holding that penalizing them would be highly punitive.

p. 3
02

Whether the intended/filed appeal is arguable

Holding

The appeal was found arguable; the respondent did not assert it was frivolous but only that the dispute had been mutually settled

Reasoning

The court applied the crystallized principle that an arguable appeal is one that warrants a response and full interrogation, not one that must succeed. The respondent's response that the appeal was academic on the basis of an alleged mutual consent was not an assertion of frivolity, so the court was satisfied the appeal already filed was arguable.

p. 3
03

Whether any prejudice would be suffered by the respondent

Holding

No prejudice was demonstrated; the respondent claimed the matter had been mutually settled

Reasoning

The court noted that no prejudice was put forth by the respondent, whose objection rested on an alleged mutual settlement of the land distribution. Balancing the competing interests, the court found that the acrimonious family/succession nature of the dispute favoured allowing the parties to ventilate their grievances on appeal.

p. 3
04

Scope of Rule 88 jurisdiction on supplementary records

Holding

Rule 88 relief lies with the Deputy Registrar; prayer 2 before the single Judge was struck out

Reasoning

The court construed Rule 88 and held that the power to grant leave to include a document omitted from the record of appeal is donated to the Deputy Registrar, so the application for that relief before the single Judge was misplaced and was struck out.

p. 2

Legal principles established

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  • The jurisdiction to grant leave to include a document omitted from a record of appeal under Rule 88 vests in the Deputy Registrar, not a single Judge
  • The court will generally not penalize a litigant for the advocate's default where instructions were timeously given and the advocate's fault caused the procedural lapse
  • Rule 4 discretion is wide and unfettered and is not confined to establishing 'sufficient reasons'; relevant factors include length and explanation of delay, arguability, and prejudice

Court orders

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  1. 1.Leave granted to the applicants to serve the record of appeal out of time
  2. 2.The time extended to include the 28th May 2020 when the record of appeal was served on the respondent
  3. 3.The record of appeal deemed properly filed
  4. 4.Prayer 2 of the application struck out
  5. 5.Costs of the application in the main appeal
On appeal from
High Court of Kenya at Eldoret
Eldoret HC Succession Cause No. 369 of 2004
Jurisdiction invoked
Rules 4, 41, 42, 43, 87 and 88 of the Court of Appeal Rules; sections 3A and 3B of the Appellate Jurisdiction Act; Article 159(2)(d) of the Constitution of Kenya 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Paul Korir Sawe & 1 other v Salina C. Sawe", Case Analysis (2021). Civil Application No. 73 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/974/eng@2021-02-19

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