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High CourtAllowedKisii CMCC No. 270 of 2009 (application dated 11th May 2012)· [2013] KEHC 4862 (KLR)

Stephen Bosire Rosana (suing on behalf of the Applicant) v Melchizedek M. Atika

High Court of Kenya
21 February 2013
RSRuth Nekoye Sitati
1,159 words in judgment
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The bottom line

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Don't let your lawyer's mistake cost you a case; courts may grant extensions if you prove you were unaware of the deadline.

What this practically means

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Executive summary

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The applicant, the defendant in Kisii CMCC No. 270 of 2009, brought a Notice of Motion dated 11th May 2012 under sections 1B, 3A and 79G of the Civil Procedure Act and Article 159 of the Constitution seeking enlargement of time to lodge an appeal against a judgment delivered on 29th February 2012. Its Human Resource Manager, Stephen Bosire Rosana, swore that the applicant's then advocates, M/s G.J.M. Masese, had not informed it of the judgment, which was only discovered after execution proceedings (a proclamation issued on 8th May 2012) prompted the instruction of new advocates, M/s Nyamurongi & Co. The respondent, Melchizedek M. Atika, countered that notice of delivery of judgment was given in court, that the applicant's counsel was notified, and that the application was a delay tactic to frustrate execution of a merited judgment. Counsel for the applicant argued the applicant should not be held responsible for counsel's mistake; counsel for the respondent maintained both parties knew the judgment date and that no explanation for the delay had been given. Perusing the trial court file, the judge noted that notice of delivery of judgment was sent to counsel without return of service, judgment was read in the absence of both parties, and a notice of change of advocates was filed on 14th May 2012. Concluding it was highly possible the applicant did not know judgment had been delivered, and that a two-month delay was not inordinate in the circumstances, the court allowed the application, directing that the appeal be filed within 30 days, with costs of the application assessed at Kshs.5,000/= payable by the applicant to the respondent within 30 days, failing which execution could issue.

Key legal issues

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01

Extension of time to appeal under section 79G of the Civil Procedure Act

Holding

The application was merited; a two-month delay was not so inordinate as to disentitle the applicant where it was highly possible the applicant did not know judgment had been delivered.

Reasoning

The court perused the trial court file and found notice of delivery of judgment was sent to counsel without return of service, judgment was read in the absence of both parties, and a notice of change of advocates was filed only on 14th May 2012. From these factors the court concluded the applicant may not have known of the judgment, and that the applicant should not suffer for counsel's mistakes or inaction.

p. 3

Legal principles established

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  • A litigant ought not to suffer for the mistakes or inaction of his advocate, and a delay of two months may not be inordinate where the applicant was possibly unaware of the judgment.

Court orders

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  1. 1.Time enlarged and leave granted to lodge the appeal from the judgment and decree in Kisii CMCC No. 270 of 2009
  2. 2.Appeal to be filed within the next 30 days
  3. 3.Applicant to pay costs of the application to the respondent, assessed at Kshs.5,000/=, payable within 30 days failing which execution may issue

Authorities

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Legislation

  • Civil Procedure Actsections 1B, 3A and 79G
  • Constitution of KenyaArticle 159
On appeal from
Chief Magistrate's Court, Kisii
Kisii CMCC No. 270 of 2009
Jurisdiction invoked
Sections 1B, 3A and 79G of the Civil Procedure Act and Article 159 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, "Stephen Bosire Rosana (suing on behalf of the Applicant) v Melchizedek M. Atika", Case Analysis (2013). Kisii CMCC No. 270 of 2009 (application dated 11th May 2012). Source:

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