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Case Brief · caselaw.co.ke
Court of AppealDismissedMisc. Application No. 499 of 2012 (reference from the decision of A.K. Murgor, JA dated 21st October 2022)· [2024] KECA 189 (KLR)

Mereka & Co Advocates v New Cooperative Kenya Creameries Limited

Court of Appeal
23 February 2024
1,766 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to revive an advocate's delayed appeal, confirming that unexplained delays must be backed by solid evidence.

What this practically means

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Executive summary

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This is a ruling of a full bench of the Court of Appeal at Nairobi on a reference under Rule 55 of the Court of Appeal Rules, by which the applicant challenged the decision of A.K. Murgor, JA dated 21st October 2022 declining to extend time to file a memorandum and record of appeal out of time. The intended appeal was against a High Court ruling of Njuguna J dated 22nd November 2018 in Misc. Application No. 499 of 2012, concerning a reference from the taxation of an Advocate-Client Bill of costs, particularly the instruction fees component. The applicant attributed the 24-month delay to the proprietor's medical condition, an assisting counsel's studies in South Africa, and the Covid-19 pandemic. The full Court, comprising Warsame, M'Inoti and Omondi JJA, reiterated the settled standard: a single judge exercising the Rule 4 discretion does so on behalf of the whole Court, and the full bench may interfere only where the judge considered irrelevant matters, failed to consider relevant ones, misapprehended the evidence or law, or was plainly wrong. The Court found the single judge's conclusions unassailable: only 237 days were covered by the Certificate of Delay; the medical evidence left a gap of about a year unexplained; the other explanations were unsupported; and the burden of proof, which lay on the applicant, was not discharged. The unexplained delay was inordinate and would prejudice the respondent. The reference was dismissed with no orders as to costs, the respondent having not participated.

Key legal issues

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01

Standard for interference by the full Court with a single judge's discretionary decision on a reference under Rule 55

Holding

The full Court may interfere only where the single judge took into account an irrelevant matter, failed to consider a relevant matter, misapprehended the evidence or law, or was plainly wrong; it is not enough that the full Court would have decided differently.

Reasoning

The Court adopted its prior statement in John Koyi Waluke that a single judge exercises the unfettered Rule 4 discretion on behalf of the whole Court. Interference requires demonstration that the discretion was exercised injudiciously or that the decision was outrightly wrong. A mere difference of opinion on the outcome cannot justify disturbing the single judge's ruling. The applicant failed to establish any such error here.

p. 3
02

Whether the delay in filing the record of appeal was satisfactorily explained

Holding

The delay of 24 months was largely unexplained: only 237 days were covered by the Certificate of Delay, and the medical and Covid-19 explanations left unexplained gaps unsupported by evidence.

Reasoning

The Park Eye Centre letter covered only July to October 2020, leaving an unexplained gap of about one year after the Certificate of Delay was issued. The Urology Centre letter was not attached, the assisting-counsel studies claim had no supporting evidence, and e-filing practice directions rendered the pandemic explanation ineffectual. Mere averments without annexures are akin to submissions from the bar.

p. 3
03

Burden of proof on an applicant for extension of time

Holding

The applicant bore the burden of proving its explanation for the delay to the required standard and failed to discharge it.

Reasoning

The applicant relied on correspondence with the respondent but annexed none of it, and the alleged correspondence postdated the delay. In the absence of responding evidence, the onus remained on the applicant to prove its allegations to the required standard, which it failed to do.

p. 3

Legal principles established

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  • A single judge exercising discretion under Rule 4 acts on behalf of the whole Court, and the full bench may interfere only where the judge took into account an irrelevant matter, failed to take into account a relevant matter, misapprehended the evidence and law, or was plainly wrong
  • The fact that a different judge would have reached a different conclusion is not of itself sufficient to warrant interference with a discretionary decision
  • The parameters for extension of time under Rule 4 are the length of and reason for the delay, the chances of success of the appeal, and prejudice to the respondent

Court orders

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  1. 1.The reference under Rule 55 of the Court of Appeal Rules is disallowed
  2. 2.No orders as to costs, the respondent not having participated in the proceedings
On appeal from
High Court at Nairobi
Misc. Application No. 499 of 2012
Jurisdiction invoked
Rule 55 of the Court of Appeal Rules (reference from a decision of a single judge, under the proviso to section 5 of the Appellate Jurisdiction Act)

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, "Mereka & Co Advocates v New Cooperative Kenya Creameries Limited", Case Analysis (2024). Misc. Application No. 499 of 2012 (reference from the decision of A.K. Murgor, JA dated 21st October 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/189/eng@2024-02-23

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