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ELCAllowedNotice of Motion dated 22nd September 2015 (case number not stated in judgment)· [2017] KEELC 1096 (KLR)
Elizabeth Njeri Kamau (Suing as the personal representative of the Estate of Wainaina Mbuthia Gachoka (deceased) v Cyrus Joseph Karanja & another [2017] KEELC 1096 (KLR)
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·~8 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#This was a Notice of Motion dated 22nd September 2015 by the Plaintiff, Elizabeth Njeri Kamau, seeking enlargement of time to file a Notice of Appeal against the judgment and decree of Nyamweya J delivered on 16th April 2015, and an order deeming the Notice of Appeal filed upon payment of requisite fees. The application was supported by the applicant's affidavit explaining that her former advocates, Njugi/Njogu B. G & Co. Advocates, failed to file the Notice of Appeal within the 14-day period, and that a subsequent change of advocates to Kimandu Gichohi & Co. Advocates further delayed the matter. The 1st Defendant, Cyrus Karanja, opposed the application in person, contending that the delay was inordinate and unexplained, that the application was an afterthought, and that the applicant should not be relieved of her advocates' failure to instruct filing. The application was canvassed by written submissions. Relying on Section 7 of the Appellate Jurisdiction Act and Sections 1 and 1A of the Civil Procedure Act, and applying the settled factors from Mutiso v Mwangi and Fakir Mohammed v Joseph Mugambi, L. Gacheru J held that the court's discretion is unfettered but must be exercised judicially; that the applicant's delay of about five months was explained by the mistakes of her former advocates, for which she should not be punished; and that the applicant's right of appeal must be balanced against the respondent's right to the fruits of the judgment. The court allowed the application entirely in terms of prayers 2 and 3, ordered the Notice of Appeal to be filed within 14 days and the appeal within 60 days, failing which the extension would lapse, with costs in the cause.
Key legal issues
#01
Whether the applicant's delay in filing the Notice of Appeal was satisfactorily explained so as to justify extension of time
Holding
The court found the delay of about five months adequately explained by the negligence of the applicant's former advocates and exercised its discretion in her favour.
Reasoning
The court applied Section 7 of the Appellate Jurisdiction Act and Section 1A of the Civil Procedure Act, guided by the Mutiso v Mwangi factors: length of delay, reason, chances of success and prejudice. It found the delay attributable solely to the former advocates, invoking the principle that a mistake of a legal advisor may amount to sufficient reason, and balanced the applicant's right of appeal against the respondent's right to enjoy the fruits of the judgment.
p. 4
Legal principles established
#- A litigant should not be punished for the mistakes of counsel, and the mistake of a legal advisor may amount to sufficient reason for extension of time.
- The court's discretion on extension of time is unfettered but must be exercised judicially, considering the period of delay, the reason for the delay, chances of appeal success, and prejudice to the respondent.
Court orders
#- 1.Prayers No. 2 and 3 of the Notice of Motion dated 22nd September 2015 allowed entirely - time enlarged to file the Notice of Appeal and the Notice of Appeal deemed filed upon payment of requisite fees
- 2.Applicant to file the Notice of Appeal within 14 days from the date of the ruling
- 3.Appeal to the Court of Appeal to be filed within 60 days from the date of the ruling, failing which the extension of time shall automatically lapse
- 4.Costs of the application to be in the cause
- Jurisdiction invoked
- Section 7 of the Appellate Jurisdiction Act; Sections 1 and 1A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elizabeth Njeri Kamau (Suing as the personal representative of the Estate of Wainaina Mbuthia Gachoka (deceased) v Cyrus Joseph Karanja & another [2017] KEELC 1096 (KLR)", Case Analysis (2017). Notice of Motion dated 22nd September 2015 (case number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1096/eng@2017-11-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.