Kaikai v Kalasinga (Civil Application E104 of 2024) [2024] KECA 1651 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a three-month late appeal filing, ruling a litigant shouldn't be punished for their lawyer's inaction.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant has satisfied the principles for the grant of an order for extension of time to file the record of appeal
- 2.Whether the delay of about three months was inordinate and sufficiently explained
- 3.Whether the applicant could be blamed for the delay occasioned by his erstwhile advocate
Key legal issues
#Whether a delay of about three months in filing the record of appeal was inordinate
The delay was not inordinate and was satisfactorily explained by the advocate's inaction after filing the notice of appeal and bespeaking proceedings.
The judgment was delivered on 4th March 2024; a notice of appeal was filed on 8th March 2024, making the record of appeal due by about 7th May 2024. The motion was filed on 5th August 2024, a delay of about three months. The court held this was not inordinate, especially as the applicant had done what he could: he filed the notice of appeal through his advocate, bespeaking proceedings, withdrew instructions upon the advocate's inaction, and then acted in person.
Whether an applicant can be blamed for delay occasioned by his advocate's failure to file the record of appeal
A litigant should not be shut out where the delay is attributable to his advocate, who had instructions to file the appeal but took no further action; the applicant explained the delay and protected his interest.
The advocate filed the notice of appeal and applied for certified copies, evidencing instructions to appeal, but then took no further action, confirming the applicant's reason for withdrawing instructions. Relying on Murai v Wainaina, mistakes of counsel should be rectified where the interests of justice so dictate. The respondent also suffered no demonstrated prejudice, while refusal would shut the applicant out from the seat of justice.
Whether failure by the advocate to copy the bespeaking letter to the respondent defeated the applicant's benefit under the proviso to rule 84(1)
The advocate's failure to copy the bespeaking letter to the respondent made it impossible for the applicant to enjoy the exclusion of time under the proviso to rule 84(1), a factor counted in the applicant's favour.
The respondent argued that failure to serve the bespeaking letter precluded reliance on rule 84(1). The court found the advocate, not the applicant, had failed to copy the letter to the respondent, thereby denying the applicant the exclusion of the period for preparation of proceedings from the computation of time. This laxity was not condoned but was not visited on the applicant.
Legal principles established
#- In an application for extension of time the applicant bears the burden to show that the delay was not inordinate, to explain the reason for the delay, and the court must consider prejudice to the respondent.
- The fourfold factors for extension of time are the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.
Court orders
#- 1.Extension of time granted for the applicant to file the record of appeal
- 2.The record of appeal to be filed within thirty (30) days from the date of the ruling
- 3.Costs of the motion to be in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court
- Not stated in the judgment
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules read together with rule 55(1), exercised by a single Judge of Appeal
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the circumstances, I allow the applicant’s motion dated 5th August, 2024, and extend time for the applicant to file the record of appeal. I direct that the record of appeal be filed within thirty (30) days from the date hereof. The costs of this motion shall be in the appeal.
The burden therefore falls on the applicant, to demonstrate that the delay was not inordinate, and also to explain the reason for the delay.
A mistake is a mistake. It is not a less mistake because it is an unfortunate slip.
The respondent has not demonstrated any prejudice that he is likely to sufier, if time is extended for the applicant to file the record of appeal. On the other hand, the applicant will be completely shut out from the seat of justice, if this Court does not exercise its discretion in his favour.
Issues in the judgment
#The judgment inconsistently refers to the same provision as 'rule 84(1) of the Court of Appeal Rules' and 'Section 84(1) of the Court of Appeal Rules'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kaikai v Kalasinga (Civil Application E104 of 2024) [2024] KECA 1651 (KLR)", Case Analysis (2024). Civil Application (Notice of Motion dated 5th August, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1651/eng@2024-11-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.