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Court of AppealPartially AllowedCivil Application Nai. E315 of 2021· [2022] KECA 401 (KLR)

Kamau v Assets Recovery Agency

Court of Appeal
4 March 2022
1,142 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed an appeal to proceed even though it was filed late, because the delay was the court registry's fault, not the appellant's.

What this practically means

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Executive summary

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This is a single-judge Rule 4 ruling of the Court of Appeal (Kantai, JA) on an application by Josphat Kamau for extension of time to lodge a Notice of Appeal out of time against a High Court judgment (Wakiaga, J.) of 8th June, 2021, in which money in three accounts held by the applicant was ordered forfeited to the state. After judgment, the applicant changed lawyers; the new firm, Gordon Ogola, Kipkoech & Company Advocates, obtained leave to come on record (consent recorded 22nd June, 2021) and filed a Notice of Appeal and letter bespeaking proceedings on 23rd June, 2021. However, the Deputy Registrar of the High Court did not sign the Notice of Appeal until 29th June, 2021, by which time the 14-day period for lodging it had expired. The respondent, Assets Recovery Agency, through an investigator's replying affidavit, opposed, contending the applicant had not given sufficient reasons for the delay and that the application was for a full bench. The applicant relied on Julius Kamau Kithaka v Waruguru Kithaka Nyaga, arguing he need only place material before the court. The court applied the well-established Fakir Mohamed v Joseph Mugambi principles, holding the Rule 4 discretion unfettered and listing relevant factors. Finding the delay attributable to the Deputy Registrar's late signing rather than the applicant, the court exercised its discretion in the applicant's favour: it extended time, deemed the Notice of Appeal signed on 29th June, 2021 as properly filed, directed service within 14 days and filing of the Record of Appeal within 30 days thereafter, with costs of the Motion in the appeal.

Key legal issues

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01

Extension of time under Rule 4

Holding

The applicant satisfied the court that the discretion should be exercised in his favour where the delay was attributable to the Deputy Registrar not signing the Notice of Appeal on time

Reasoning

The court applied the Fakir Mohamed principles: unfettered discretion considering period of delay, reasons, arguability and prejudice. The applicant changed lawyers after judgment, obtained leave to come on record, filed a Notice of Appeal and bespeaking proceedings, but the Deputy Registrar did not sign the Notice until 29th June, 2021, after the 14-day period expired. The delay was thus not the applicant's fault and the draft Memorandum showed an arguable appeal.

02

Leave to come on record after judgment

Holding

A law firm coming on record for a party after judgment has been delivered must obtain leave of court

Reasoning

The court noted as common ground that the Civil Procedure Act requires a new law firm to obtain leave of court to come on record after judgment. The applicant's new firm applied shortly after judgment and a consent was recorded on 22nd June, 2021 allowing it to come on record, after which it filed the Notice of Appeal and letter bespeaking proceedings.

p. 2

Legal principles established

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  • Rule 4 discretion is unfettered; the court considers all relevant factors including delay, reasons, arguability and prejudice

Court orders

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  1. 1.Extension of time granted for serving Notice of Appeal and lodging Record of Appeal out of time
  2. 2.Notice of Appeal signed by the Deputy Registrar on 29th June, 2021 deemed properly filed
  3. 3.Notice of Appeal to be served on the respondent within 14 days
  4. 4.Record of Appeal to be filed within 30 days after service
  5. 5.Costs of the Motion to be in the appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Court of Appeal RulesRule 4
  • Civil Procedure Actprovision on change of advocate after judgment

Cases cited (6)

  • Julius Kamau Kithaka v Waruguru Kithaka Nyaga & 2 Others
    C.A. No. Nyeri 14 of 2013 (ur)

    Applicant need not show sufficient reason but must place material before court for exercise of discretion

  • Fakir Mohamed v Joseph Mugambi & 2 Others
    Civil Application No. 332 of 2004

    Principles for extension of time under Rule 4

  • Mutiso v Mwangi
    Civil Application No. NAI. 255 of 1997 (ur)

    Relevant factors in Rule 4 applications

  • Mwangi v Kenya Airways Limited
    [2003] KLR 496

    Relevant factors in Rule 4 applications

  • Major Joseph Mwereri Igweta v Murika Methare & Attorney General
    Civil Application No. NAI 8 of 2000 (ur)

    Relevant factors in Rule 4 applications

  • Murai v Wainaina (No. 4)
    1982 KLR 38

    Relevant factors in Rule 4 applications

On appeal from
High Court of Kenya at Nairobi
Civil Application No. 13 of 2020
Jurisdiction invoked
Article 159(2)(d) of the Constitution of Kenya, 2010 and rule 4 of the Court of Appeal Rules

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, "Kamau v Assets Recovery Agency", Case Analysis (2022). Civil Application Nai. E315 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/401/eng@2022-03-04

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