Kaburungo (Suing as the Administrator of the Estate of Dedan Kageni Kaburungo) v Karatu & 2 others
The bottom line
#A Kenyan court allowed a late appeal because a lawyer's failure to file it was a reasonable excuse, though the applicant still paid costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant gave a reasonable explanation for the delay in filing the notice of appeal
The court found the applicant's explanation - that she instructed her former advocate to appeal but discovered in April 2022 that no appeal had been lodged - reasonable.
The applicant annexed an email dated December 1, 2021 requesting the former advocate to initiate and complete the appeal, and inquired about the status in April 2022. The court found this demonstrated she had instructed the advocate and gave a reasonable explanation for the delay of almost five months.
Whether the respondent would suffer prejudice if extension is granted
The court accepted that the 2nd Defendant is in possession and/or occupation of the suit property and would suffer no prejudice.
Counsel for the applicant submitted, without contradiction, that the 2nd Defendant/Respondent is in current possession and/or occupation of the suit property. The court agreed that the respondent would suffer no prejudice if the applicant is allowed to go on appeal.
Legal principles established
#- The decision whether or not to extend time for appealing is discretionary, guided by the length of delay, reason for delay, chances of the appeal succeeding and prejudice to the respondent.
Court orders
#- 1.That the time for filing notice of appeal is hereby extended on condition that the same be filed within twenty one (21) days from the date of this ruling
- 2.That the 2nd Defendant/Respondent shall have costs of this application
- Jurisdiction invoked
- Article 159(2)(d) of the Constitution; Sections 1A, 3A and 95 of the Civil Procedure Act; Order 9 Rules 9 and 10 and Order 50 Rules 4 and 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kaburungo (Suing as the Administrator of the Estate of Dedan Kageni Kaburungo) v Karatu & 2 others", Case Analysis (2023). Environment & Land Case 282 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18465/eng@2023-03-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.