Naphtali O. Mogusu v Jane Nungari Boro [2021] KEELC 4362 (KLR)
The bottom line
#The High Court let a two-day-late appeal proceed because the lawyer's honest mistake over weekend counting wasn't the client's fault, though the client paid costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the two-day delay in filing the memorandum of appeal without leave was excusable
The delay was explained satisfactorily, was not inordinate, and the Appellant moved with haste to rectify it
The court applied the principles in Nicholas Kiptoo Arap Korir Salat v IEBC on extension of time. It found counsel's mistaken belief that Saturdays and Sundays are excluded in computing time to be a satisfactory explanation; the Appellant was only two days out of time, acted quickly once the error was noticed, and the Respondent would suffer no prejudice from the appeal being heard on merit.
Whether an advocate's mistake should be visited on the litigant
The court declined to penalise the Appellant for counsel's mistaken belief, guided by Article 159(1)(d) of the Constitution
Counsel for the Appellant was under the mistaken belief that weekends are excluded in the computation of the 30-day timeline under Section 79G of the Civil Procedure Act. Guided by the constitutional command to administer justice without undue regard to technicalities, the court exercised its discretion in favour of hearing the appeal on merit.
Whether the Respondent's striking-out application survived
Once leave was granted and the memorandum deemed filed, the striking-out application was overtaken by events
The Respondent had sought to strike out the memorandum of appeal as filed out of time without leave. Having allowed the Appellant's application for extension of time, the basis for the striking-out application fell away, and the court accordingly declared it overtaken by events.
Legal principles established
#- The decision whether or not to extend the time within which to file an appeal is essentially discretionary, guided by factors in previous decisions including the Salat principles
Court orders
#- 1.Leave granted to the Appellant to file his appeal out of time
- 2.The Memorandum of Appeal filed on 24/9/2019 deemed as properly filed
- 3.The Appellant to pay the Respondent costs for the Respondent's application dated 04/10/2019
- 4.The Respondent's application dated 04/10/2019 overtaken by events
- On appeal from
- Milimani Chief Magistrate's Court
- CMCC Civil Case No. 7228 of 2014
- Jurisdiction invoked
- Inherent discretion to extend time under Section 79G of the Civil Procedure Act read with Article 159(1)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Naphtali O. Mogusu v Jane Nungari Boro [2021] KEELC 4362 (KLR)", Case Analysis (2021). Not stated in judgment (two applications dated 4/10/2019 and 17/10/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4362/eng@2021-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.