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Court of AppealDismissedReference from the ruling of Odunga, JA dated 24th November 2023

Carla (Suing as the Administrator and Personal Representative of the Estate of Rossi Renata (Deceased)) v Marelli & 2 others (Civil Application E019 of 2022) [2025] KECA 38 (KLR)

Court of Appeal of Kenya
24 January 2025
1,632 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 dismissed an attempt to revive a stale appeal, confirming that litigants cannot blame their lawyers for years of inaction.

What this practically means

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Executive summary

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This is a reference before a full bench of the Court of Appeal under Rule 57(1)(b) of the Court of Appeal Rules, by Roncarolo Carla, administrator of the estate of Rossi Renata (deceased), challenging a ruling of Odunga, JA dated 24th November 2023 that declined to extend time for filing a Notice of Appeal and Record of Appeal against the judgment of J. O. Olola, J in Malindi ELC Civil Case No 61 of 2001 (rendered 27th March 2020). The applicant blamed the delay of over two years on the negligence of her former advocates, Katsoleh & Company Advocates, who failed to inform her of the judgment and filed an invalid Notice of Appeal out of time and without leave. The full bench restated the settled test that a full bench interferes with a single Judge's discretionary decision only where the single Judge took into account irrelevant matters, failed to consider relevant ones, misapprehended the evidence or law, or was plainly wrong; it is insufficient that the full bench would have decided differently. The court held that while mistakes of counsel should ordinarily not be visited on a client, there is a corollary that legal business must be conducted efficiently, and the applicant's two-year-and-four-month inaction after learning in July 2020 that she was out of time could not be wholly attributed to her advocates. Sympathy could not substitute for the law. The court found the single Judge exercised his discretion judiciously and dismissed the reference with costs to the respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the single Judge failed to take into account a relevant matter, applied a wrong principle, misapprehended the evidence, or was plainly wrong in declining to extend time for filing the Notice of Appeal and Record of Appeal
  2. 2.Whether the inordinate delay in applying for extension of time was sufficiently explained
  3. 3.Whether the mistakes of the applicant's former advocates should be visited upon the applicant

Key legal issues

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01

Test for interference by a full bench with a decision of a single Judge on a reference

Holding

The applicant must show the single Judge excluded a relevant matter, included an irrelevant one, applied a wrong principle, misapprehended the evidence or law, or that the decision is plainly wrong.

Reasoning

The court restated the principles from John Koyi Waluke v Moses Masika Wetangula: a single Judge exercising discretion under Rule 4 acts on behalf of the whole Court. The full bench interferes only on the established grounds or where the decision is plainly wrong and could not have been reached by a reasonable tribunal properly directing itself to the evidence and the law.

p. 2
02

Whether delay was attributable to the applicant's advocates rather than the applicant

Holding

The delay in applying for extension of time could not be wholly attributed to the advocates, since the applicant knew she was out of time in July 2020 but only applied over two years later.

Reasoning

While the applicant blamed her former counsel's negligence and failure to inform her of the judgment, the court noted Odunga, JA's finding that she took no steps to regularise her position once aware in July 2020. The two-year-and-four-month delay in seeking extension of time was therefore inordinate and unexplained, and the single Judge's refusal to excuse it was judicious.

p. 4
03

Sympathy versus law in exercising discretion

Holding

The court does not act on sympathy; justice must be administered in accordance with the law.

Reasoning

Counsel pleaded that the single Judge ought to have been more sympathetic to the applicant's predicament. The court endorsed the ruling that, even as the court seeks to do justice, it is a court of law and not mercy, bound by the law and the Constitution, citing Daniel Kimani Njihia v Francis Mwangi and Mehrunnissa v Mohamed Parvez.

p. 3

Legal principles established

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  • A full bench may interfere with a single Judge's discretionary decision only where the single Judge took into account an irrelevant matter, failed to take into account a relevant matter, misapprehended the evidence or the law, or was plainly wrong; it is not enough that the full bench would have reached a different result.
  • A litigant bears responsibility to follow up their case and cannot simply blame advocates on record for all transgressions in the conduct of litigation.
  • The maxim that mistakes of counsel should not be visited on a client carries a corollary that legal business must be conducted efficiently, and the applicant must sufficiently demonstrate that non-compliance was due to the advocate's fault.

Court orders

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  1. 1.The reference is dismissed with costs to the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
Court of Appeal of Kenya (single Judge, Odunga, JA)
Application under Rule 57(1)(b) of the Court of Appeal Rules for reference against ruling of 24th November 2023
Jurisdiction invoked
Rule 57(1)(b) of the Court of Appeal Rules (reference from decision of a single Judge)

Relief refused

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Extension of time to file Notice of Appeal and Record of Appeal

Inordinate delay of two years and four months was not sufficiently explained; the single Judge exercised his discretion judiciously

p. 4

Costs

The reference is dismissed with costs to the respondents

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is not enough, for example, to show the full Court that had it been sitting in place of the single Judge, it would have arrived at a difierent result.
p. 2Standard for interference with a single Judge's decision on a reference
In the circumstances, it is our view that there was inordinate delay that was not suficiently explained by the applicant. We are satisfied that the learned single Judge exercised his discretion judiciously, and this Court cannot therefore interfere with his determination.
p. 4Outcome on the reference
Accordingly, this reference lacks merit and is hereby dismissed with costs to the respondents.
p. 4Final orders - dismissal and costs
We appreciate that we are sworn to do justice but justice must be administered in accordance with the law.
p. 3Justice administered in accordance with law, not sympathy

Issues in the judgment

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minor

The judgment inconsistently states the date of the trial court's judgment as 27th March 2020 in the opening paragraph and 27th May 2020 in counsel's submissions.

minor

The description of the applicant's role is ambiguous: the applicant is described as dissatisfied with the decision, but the reference seeks to challenge the single Judge's refusal to extend time; the narrative also states the ruling was 'on an application filed by the Applicant and serve a Notice of Appeal', which is internally garbled.

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, "Carla (Suing as the Administrator and Personal Representative of the Estate of Rossi Renata (Deceased)) v Marelli & 2 others (Civil Application E019 of 2022) [2025] KECA 38 (KLR)", Case Analysis (2025). Reference from the ruling of Odunga, JA dated 24th November 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/38/eng@2025-01-24

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