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Court of AppealDismissedCivil Appeal (Application) E634 of 2021· [2022] KECA 721 (KLR)

Kivae Residents Organization v Lukenya Ranching & Farming Cooperative Ltd & 2 others

Court of Appeal
22 July 2022
1,440 words in judgment
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The bottom line

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The Court of Appeal refused to let a group appeal a 2007 judgment after 14 years of inaction, holding that clients must follow up with their lawyers.

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 at Nairobi by MSA Makhandia, JA, on a notice of motion dated 14th October 2021 in which Kivae Residents Organization sought extension of time to appeal against the judgment of Wendoh, J. delivered on 14th December 2007 in Nairobi Misc. Civil Application No. 162 of 2007. The applicant explained that judgment was delivered in its absence and that it only became aware of it in 2021, having lost touch with its former counsel, discovering the outcome while pursuing a mandamus application in the Environment and Land Court at Machakos. The respondents did not respond to the motion. The court first held that the application was brought under the wrong provisions - Sections 79G and 95 of the Civil Procedure Act and Order XLIX Rule 5 of the Civil Procedure Rules apply in the courts below, not in the Court of Appeal, whose jurisdiction derives from Rule 4 of its own Rules - but proceeded to consider the motion under the correct provisions in the interest of substantive justice pursuant to Article 159 of the Constitution. Applying the settled Mutiso principles, the court found the delay of over 14 years inordinate, the explanation of lost contact with counsel implausible given the client's duty to pursue its instructions, the chances of success doubtful as no grounds of appeal were disclosed, and no great prejudice to the applicant in denial. The motion was dismissed with no order as to costs.

Key legal issues

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01

Correct statutory basis for extension of time in the Court of Appeal

Holding

The application was brought under the wrong provisions; the Court's jurisdiction is derived from Rule 4 of the Court of Appeal Rules, but the court proceeded to consider the motion under the correct provisions in the interest of substantive justice pursuant to Article 159 of the Constitution

Reasoning

The applicant cited Sections 79G and 95 of the Civil Procedure Act and Order XLIX Rule 5 of the Civil Procedure Rules, which the court held are inapplicable in the Court of Appeal but apply in the courts below. Nonetheless, invoking Article 159 and the overriding objective, the court treated the motion as brought under Rule 4 rather than striking it out.

p. 2
02

Principles governing exercise of discretion to extend time

Holding

The court has wide but judicious discretion guided by the settled principles in Leo Sila Mutiso v Rose Hellen Wangari Mwangi: length of delay, reasons for delay, (possibly) chances of appeal succeeding, and degree of prejudice to the respondent

Reasoning

The court restated the four Mutiso factors as the settled framework. Applying them, it found a delay of over 14 years inordinate; the explanation of lost contact with counsel implausible because the applicant did not state the circumstances or duration of the lost contact and sat back for years; the chances of success doubtful given no disclosed grounds of appeal; and no great prejudice to the applicant in denial.

p. 2
03

Client's duty to follow up with counsel

Holding

A litigant cannot blame an advocate's inaction for an inordinate delay; the client must pursue its matter with counsel, and an advocate's failure to inform is not an excusable mistake

Reasoning

Relying on Bi-Mach Engineers Limited v James Kahoro Mwangi, the court held that it is not enough to accuse an advocate of failure to inform as if there were no duty on the client to pursue the matter. The applicant did not disclose that it followed up the litigation with its erstwhile advocate, and its conduct from 2007 to 2020 showed singular lack of interest.

p. 2
04

Chances of success of the intended appeal

Holding

A single judge does not determine the merits of an intended appeal with finality; the consideration is prefixed with 'possibly'. Here, no grounds of appeal were disclosed, so no issue worthy of the court's engagement could be discerned

Reasoning

Citing Athuman Nusura Juma v Afwa Mohamed Ramadhan, the court noted the Court has been careful not to determine merits with finality at this stage, reserving that for the full court. However, the application disclosed no grounds of appeal, leaving the court unable to identify any issue worthy of engagement, weighing against extension.

p. 3

Legal principles established

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  • The Court of Appeal's jurisdiction for extension of time is derived from Rule 4 of the Court of Appeal Rules, not from Sections 79G and 95 of the Civil Procedure Act or Order XLIX Rule 5 of the Civil Procedure Rules, which apply in the courts below
  • A client has a duty to pursue its instructions with counsel; inaction by an advocate is not an excusable mistake entitling the client to extension of time
  • Whether an intended appeal has merits is not determined with finality by a single judge on an extension-of-time application; the consideration is prefixed with the word 'possibly'

Court orders

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  1. 1.The notice of motion dated 14th October 2021 seeking extension of time to appeal out of time is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 95
  • Civil Procedure RulesOrder XLIX Rule 5
  • Court of Appeal RulesRule 4
  • Constitution of KenyaArticle 159

Cases cited (3)

  • Leo Sila Mutiso Vs. Rose Hellen Wangari Mwangi
    Civil Application No. Nai 251 of 1997

    Settled principles for extension of time: length of delay, reasons for delay, chances of appeal succeeding, and prejudice to the respondent

  • Bi-Mach Engineers Limited Vs. James Kahoro Mwangi
    [2011] eKLR

    Client's duty to pursue advocates; an advocate's inaction is not an excusable mistake and unexplained delay militates against extension

  • Athuman Nusura Juma Vs. Afwa Mohamed Ramadhan
    [2016] eKLR

    A single judge does not determine with finality whether an intended appeal has merits; the consideration is prefixed with 'possibly'

On appeal from
High Court of Kenya at Nairobi
Misc. Civil Application No. 162 of 2007
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules; Article 159 of the Constitution invoked to treat the motion as brought under the correct provisions

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, "Kivae Residents Organization v Lukenya Ranching & Farming Cooperative Ltd & 2 others", Case Analysis (2022). Civil Appeal (Application) E634 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/721/eng@2022-07-22

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