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ELCPartially AllowedNot stated in the extract (appeal admitted on 13.6.2023)· [2024] KEELC 451 (KLR)

Consolidated Bank of Kenya Ltd v Ndugu & 5 others (Environment and Land Appeal E053 of 2022) [2024] KEELC 451 (KLR)

High Court of Kenya at Meru
31 January 2024
1,150 words in judgment
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The bottom line

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The High Court in Meru reinstated a struck-out appeal because the delay was short and the other side showed no real prejudice, despite the appellant lawyer's poor conduct.

What this practically means

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Executive summary

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This was a ruling on a notice of application dated 13.10.2023 seeking to set aside an order of 28.9.2023 striking out an appeal for non-compliance, to allow the record of appeal to be filed, and to reinstate the appeal for hearing on merits. The appeal had been admitted on 13.6.2023 with directions to file the record within 60 days and a mention on 21.9.2023. The applicant's advocate, Mr. Mugambi Nyaga, attended the mention, sought 7 further days to comply, but failed to file the record, attributing the failure to an oversight arising from attending to other matters. The 5th and 6th respondents opposed through grounds of opposition, arguing the delay was unexplained; the 3rd and 4th respondents were not opposed; the 1st and 2nd respondents did not attend. The court, C.K. Nzili J, held that the duty to seek directions and file the record rests on the appellant under order 42 rule 13, and that counsel's conduct - prioritising other files and doing nothing for seven days after directions were given in his presence - was not a mere oversight. Nevertheless, weighing the constitutional right of appeal, the overriding objective under sections 1A and 1B of the Civil Procedure Act and Article 159(2) of the Constitution, and the short delay of less than three months, the court found no compensable prejudice to the respondents. The application was allowed, the record of appeal to be filed and served within 14 days, and costs of the application awarded to the 5th and 6th respondents.

Key legal issues

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01

Whether counsel's non-compliance and delay should be excused so the appeal may be reinstated

Holding

The application was allowed despite partial inexcusable delay, because the delay was short (less than three months) and the respondents showed no compensable prejudice.

Reasoning

The court acknowledged counsel gave priority to other files and did not comply with directions given in his presence, so the non-compliance was not wholly excusable. However, applying the overriding objective and Article 159, and citing authority that the right of appeal is constitutional, the court weighed the prejudice to the respondents and found none stated that costs could not compensate. The delay was under three months, so reinstatement served substantive justice.

p. 3
02

Who bears responsibility for filing the record of appeal

Holding

The duty rests squarely on the appellant, and mistakes of counsel attending to other matters do not excuse non-compliance with directions given in counsel's presence.

Reasoning

The court found that directions for filing the record were issued in the presence of the applicant's advocate on 21.9.2023, who sought and obtained 7 more days. Counsel then did nothing for seven days and did not seek an extension. The court rejected the argument that this was an oversight, holding counsel chose to prioritise other files, and the applicant could not blame the court for the resulting striking out.

p. 2

Legal principles established

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  • Delay alone should not prevent the court from doing justice to the parties; the court must weigh prejudice to the respondent before striking out an appeal
  • Under order 42 rule 13, the duty to seek directions and file the record of appeal rests with the appellant
  • An appeal should not be left to hang indefinitely over respondents; justice demands appeals be resolved to avoid stale appeals

Court orders

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  1. 1.The order of 28.9.2023 striking out the appeal is set aside (application allowed)
  2. 2.The record of appeal shall be filed and served within 14 days from the date of the ruling
  3. 3.The appeal is reinstated for hearing on merits
  4. 4.Costs of the application awarded to the 5th and 6th respondents

Authorities

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Legislation

  • Civil Procedure Actsections 1A & 1B
  • Constitution of KenyaArticle 159(2)
  • Civil Procedure RulesOrder 42 rules 13 & 35

Cases cited (3)

  • Allan Otieno Ofula vs Gurdev Engineering and Construction Ltd
    (2015) eKLR
  • Mwangi S. Kaimenyi vs AG & others
    Civil Misc no. 720 of 2009
  • Abraham Mukhola Asitsa vs Silver Style Investment Co. Ltd
    (2020) eKLR
On appeal from
Lower court (magistrates' court)
Jurisdiction invoked
Order 42 rules 13 & 35 of the Civil Procedure Rules; sections 1A & 1B of the Civil Procedure Act as read with Article 159(2) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Consolidated Bank of Kenya Ltd v Ndugu & 5 others (Environment and Land Appeal E053 of 2022) [2024] KEELC 451 (KLR)", Case Analysis (2024). Not stated in the extract (appeal admitted on 13.6.2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/451/eng@2024-01-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.