Henry Musau Mwania v Peter Musyoka Waema & 2 others [2020] KEELC 2117 (KLR)
The bottom line
#Kenya's High Court allowed a delayed appeal, confirming you can hire a new lawyer after judgment without court leave, and short delays with honest reasons get excused.
What this practically means
#Executive summary
#Key legal issues
#Whether leave was required to instruct new counsel post-judgment
No leave was required because Order 9 Rule 9 applies only to changes of advocate within the same suit, not when appointing an advocate to prosecute an appeal.
The court held that Order 9 Rule 9 governs changes of advocates within the same suit. Once the lower court matter was concluded, the Applicant was free to appoint a different advocate or to appeal in person without leave of the trial court or consent of the former advocate. Accordingly, the objection that the application was filed by a 'busy body' failed.
Whether the delay of slightly under two months should be excused under Section 79G
Yes. The delay was not inordinate, and the Applicant's explanation - that his advocate did not inform him of the judgment in time - was sufficient cause.
Applying the factors in Imperial Bank Ltd (in receivership) v Alnashir Popat, the court weighed the length of the delay (slightly less than two months), the reasons for it, prejudice to the parties, and the Applicant's constitutional right of appeal. Finding the Applicant acted promptly in person and the explanation credible, the court exercised its discretion to extend time.
Legal principles established
#- Order 9 Rule 9 of the Civil Procedure Rules applies only to changes of advocate within the same suit, not on appeal.
- After a matter is concluded, a party may appoint a new advocate or act in person on appeal without leave of the trial court.
Court orders
#- 1.Leave granted to the Applicant to file an Appeal against the Judgment of the Machakos Chief Magistrate dated 26th June, 2019 in Civil Case Number 764 of 2013 out of time
- 2.The Memorandum of Appeal to be filed and served within 30 days of the Ruling
- 3.Each party to cater for his own costs
- On appeal from
- Chief Magistrate's Court, Machakos
- Civil Case Number 764 of 2013
- Jurisdiction invoked
- Section 79G of the Civil Procedure Act (extension of time to appeal out of time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Henry Musau Mwania v Peter Musyoka Waema & 2 others [2020] KEELC 2117 (KLR)", Case Analysis (2020). Not stated in judgment (Notice of Motion dated 3rd September, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2117/eng@2020-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.