Anne Gichimo v Kenya Ordinance Factories Corporation
The bottom line
#Kenya's Court of Appeal allowed a litigant's appeal over a two-year filing delay, ruling that a lawyer's honest mistake and Covid-19 disruptions excused the late appeal record.
What this practically means
#Executive summary
#Key legal issues
#Whether the full bench could interfere with the single judge's discretionary decision on a reference
The reference was merited because the single judge failed to properly consider the reasons for delay advanced in the applicant's and her advocate's affidavits, and thus improperly exercised his discretion under rule 4.
The full court restated the Mbogo v Shah and John Koyi Waluke principles limiting interference with a single judge's discretion to cases of misdirection, consideration of irrelevant matters, failure to consider relevant matters, or a plainly wrong decision. It found that had the learned judge properly considered the two affidavits, he would have found the delay adequately explained. The pandemic-related filing disruption and the inadvertent misfiling constituted a sufficient and reasonable explanation.
Whether the delay of 729 days in filing the record of appeal was excusable
Yes - the delay was sufficiently explained by a clerk's inadvertent misfiling of the collected proceedings, the advocate's honest mistaken belief, and the Covid-19 filing disruptions, including the failed email filing discovered only in January 2021.
The court accepted that the advocate bore a duty to confirm receipt of the email but could not ignore the exceptional disruption caused by the pandemic to court operations throughout 2020. The explanation was set out in two affidavits; the judge's failure to properly weigh them amounted to failing to consider relevant material.
Whether an advocate's mistake should be visited on the litigant
No - the court declined to punish the applicant for her advocate's mistake, noting the advocate made deliberate efforts to rectify the oversight once discovered, and that the respondent would suffer no prejudice if the appeal were heard on its merits.
Following Owino Ger, Belinda Murai and Philip Keipto Chemwolo, the court reiterated that mistakes of counsel should not bar access to justice where fault is attributable to the advocate and remedial steps were taken promptly. No prejudice to the respondent was demonstrated.
Whether the intended appeal was arguable
Yes - issues of res judicata, the alleged failure to assess the defamation and sexual harassment claims, and the legality of the dismissal are not frivolous and merit interrogation on appeal.
The court disagreed with the single judge's conclusion that the draft grounds lacked arguability, applying the standard that an arguable appeal need only raise a single bona fide issue, and noting per Mwangi v Kenya Airways that chances of success are only a possible consideration in an extension-of-time application.
Legal principles established
#- A single judge exercising the discretion under rule 4 does so on behalf of the whole court, and the full bench may interfere only where the single judge took into account an irrelevant matter, failed to take into account a relevant matter, misapprehended the evidence or law, or the decision was plainly wrong; it is not enough that the full bench would have reached a different result.
- An arguable appeal is not one necessarily bound to succeed but one that raises at least a single bona fide issue worthy of consideration; and consideration of the chances of the appeal succeeding is only a possible, not a mandatory, consideration in an extension-of-time application.
- Where non-compliance with procedural requirements is attributable to an advocate's fault, and the advocate made deliberate efforts to rectify the oversight once discovered, the court may decline to visit the advocate's mistakes upon the client.
Court orders
#- 1.The reference is allowed
- 2.The applicant is directed to file and serve the record of appeal within thirty (30) days from the date of the judgment
- 3.The costs of the reference shall abide the outcome of the intended appeal
- On appeal from
- Court of Appeal (decision of a single judge, Laibuta, JA)
- Jurisdiction invoked
- Rule 55 (now rule 57) of the Court of Appeal Rules - reference to the full court from a decision of a single judge
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Anne Gichimo v Kenya Ordinance Factories Corporation", Case Analysis (2025). Reference from the ruling of Laibuta, JA dated 9th July 2021 (extension of time application under rule 4 of the Court of Appeal Rules). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1196/eng@2025-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.