Mugah & another v Bank of Africa Kenya Limited & another
The bottom line
#Kenya's Court of Appeal allowed two men to appeal late because their lawyer never told them about the judgment and they acted quickly once they found out.
What this practically means
#Executive summary
#Key legal issues
#Whether mistake of counsel can justify extension of time under Rule 4
Yes, where the litigants acted promptly upon discovering the advocates' default, saving time, and the resulting delay is not inordinate.
The court acknowledged the general rule that counsel's mistake does not favour an extension, but invoked its discretion because the applicants instructed new advocates within days of learning of the judgment, requested certified copies almost immediately, and filed the application about 50 days after judgment - not inordinate delay.
Whether the delay of about 50 days was inordinate
No; the delay was not inordinate given the prompt action upon discovery of the judgment.
The applicants learned of the judgment on 9 May 2022 via WhatsApp from previous advocates, a fact not controverted. They instructed new advocates who requested proceedings two days later and filed the application on 19 May 2022, resulting in about 50 days' delay from judgment.
Whether the respondents would be prejudiced by the extension
No prejudice was demonstrated; the respondents did not respond to the application.
The respondents filed no response and therefore did not assert that the extension would prejudice them substantially or at all, a factor weighing in favour of the applicants under the Fakir Mohamed considerations.
Legal principles established
#- The Court's discretion under Rule 4 to extend time is guided by the factors in Fakir Mohamed v Joseph Mugambi: length of and reason for delay, chances of appeal succeeding, prejudice to respondent, effect on public administration, compliance with time limits, resources of parties and public importance.
- Mistake of counsel is ordinarily not good reason to extend time, but the court may exercise its discretion favourably where the litigant acted promptly upon discovering the counsel's default and the delay is not inordinate.
Court orders
#- 1.The application is allowed
- 2.The applicants shall within fourteen (14) days file and serve a notice of appeal
- 3.Thereafter, within sixty (60) days of filing and serving the notice of appeal, the applicants shall file and serve the record of appeal
- 4.Costs of the application shall be in the intended appeal
- On appeal from
- High Court of Kenya at Kisumu
- Kisumu High Court Appeal No. 34 of 2020
- Jurisdiction invoked
- Rules 4 of the Court of Appeal Rules, 2010 (extension of time to file notice of appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mugah & another v Bank of Africa Kenya Limited & another", Case Analysis (2022). Civil Application E067 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1095/eng@2022-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.