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Case Brief · caselaw.co.ke
Supreme CourtDismissedApplication 19 of 2019

Muia & another v Kababu

Supreme Court of Kenya
17 December 2019
722 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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File extension of time applications in the Court of Appeal, not the Supreme Court.

What this practically means

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The Supreme Court dismissed an application to extend time for filing a Notice of Appeal. The applicants wanted to start Certification Proceedings in the Court of Appeal, but they filed the extension request in the wrong court. The Supreme Court said such applications must go to the Court of Appeal. Also, the applicants failed to prove their lawyer caused the delay, so the court could not excuse it.

Executive summary

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This was an application by Lither Peter Muia and another (the Applicants) seeking an extension of time to file a Notice of Appeal out of time against a judgment of the Court of Appeal delivered on 27th May 2016 in Civil Appeal No. 10 of 2017. The Applicants claimed that the delay of about one and a half years was caused by their former advocates' failure to file the Notice of Appeal and commence Certification Proceedings, despite instructions to do so. The Respondent opposed the application, arguing it was incompetent as it offended Rule 24(1) of the Supreme Court Rules on Certification, that the delay was inordinate and unexplained, and that the application should have been filed in the Court of Appeal since it was intended to pave way for Certification Proceedings. The Supreme Court, in a unanimous decision, dismissed the application. The Court held that while it recognizes the principle that mistakes of an advocate ought not to be visited upon a client, there was no evidence on record to show that the Applicants had given instructions to their advocates to file a Notice of Appeal or that the advocates misled them. Furthermore, the Court found that since the application was intended to pave the way for Certification Proceedings in the Court of Appeal, the appropriate forum for determining such an application was the Court of Appeal, not the Supreme Court. The Court ordered the Applicants to bear the costs of the application.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the delay in filing the Notice of Appeal was occasioned by the Applicants' former advocates' failure to file the same and commence Certification Proceedings.
  2. 2.Whether the Application for extension of time should be granted.

Key legal issues

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01

Whether the Supreme Court can grant an extension of time to file a Notice of Appeal where the application is intended to pave way for Certification Proceedings in the Court of Appeal.

Holding

The Supreme Court cannot grant such an extension; the appropriate forum is the Court of Appeal.

Reasoning

The Court found that the application for extension of time was intended to pave the way for the commencement of Certification Proceedings in the Court of Appeal. Since the Certification Proceedings themselves are to be initiated and determined in the Court of Appeal, the application for extension of time to file the Notice of Appeal, which is a precursor to those proceedings, should also be filed in the Court of Appeal. The Supreme Court therefore lacked jurisdiction to entertain the application.

02

Whether the Applicants provided sufficient evidence to support their claim that the delay was caused by their advocates' negligence.

Holding

The Applicants did not provide sufficient evidence to support their claim.

Reasoning

The Court noted that while it recognizes the principle that mistakes of an advocate ought not to be visited upon the client, there was no evidence on record to show that the Applicants had given instructions to their advocates to file a Notice of Appeal, nor was there any communication to back up the claim that the advocates misled them into believing Certification Proceedings had been commenced. Without such evidence, the Court could not exercise its discretion in favour of the Applicants.

Legal principles established

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  • Extension of time applications for Certification Proceedings must be filed in the Court of Appeal, not the Supreme Court.
  • The Supreme Court lacks jurisdiction to hear extension applications that are precursors to Court of Appeal proceedings.
  • To rely on the principle that an advocate's mistake should not harm a client, you must provide evidence of instructions given to the advocate.
  • Without proof of instructions or communication, a court will not excuse delay caused by an advocate's alleged negligence.
  • Costs follow the event; the losing party in such applications bears the costs.

Court orders

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  1. 1.The Application dated June 21, 2019 and filed on June 24, 2019 is hereby dismissed.
  2. 2.The applicants shall bear the costs of this Application.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
On appeal from
Court of Appeal
Civil Appeal No. 10 of 2017
Jurisdiction invoked
Article 163(4)(b) of the Constitution of Kenya

Relief refused

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Extension of time to file a Notice of Appeal out of time against the Judgment and Orders of 27th May 2016, by the Court of Appeal in Civil Appeal No. 10 of 2017

No evidence on record to show that instructions were given to the advocates to file a Notice of Appeal and that the advocates failed to act on them; also, the application should have been filed in the Court of Appeal as it is intended to pave way for Certification Proceedings.

Costs

The applicants shall bear the costs of this Application.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is clear to us that the Application for extension of time, is intended to pave the way for the commencement of Certification Proceedings in the Court of Appeal. That being the case, the appropriate forum for determining such an application, is the Appellate Court.
p. 2 Jurisdiction of the Supreme Court over extension of time for Certification Proceedings
While we recognize the principle that the mistakes of an advocate, ought not to be visited Upon his client, there is no evidence on record, to show that such instructions, as had been given by the Applicants to their advocates to file a Notice of Appeal were not acted Upon by the latter.
p. 2 Burden of proof for advocate negligence claim
The Application dated June 21, 2019 and filed on June 24, 2019 is hereby dismissed.
p. 2 Final orders dismissing the application
The applicants shall bear the costs of this Application.
p. 2 Costs order

Key timeline

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2016-05-27
Court of Appeal delivered judgment in Civil Appeal No. 10 of 2017.
2019-06-21
Applicants filed application for extension of time to file Notice of Appeal.
2019-06-24
Application filed in the Supreme Court.
Judgment date
Supreme Court dismissed the application, ordering applicants to pay costs.

Practical implications

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For lawyers

File extension in correct court

When your client needs an extension of time to file a Notice of Appeal for Certification Proceedings, file the application in the Court of Appeal, not the Supreme Court. Filing in the wrong court wastes time and costs. Also, always document client instructions in writing to prove any advocate error if delay occurs.

For businesses

Document lawyer instructions clearly

If your business relies on a lawyer to file an appeal, keep written records of all instructions and communications. Without proof, you cannot blame the lawyer for delays. This case shows that courts require evidence, not just claims, to excuse late filings. Use emails or signed letters to confirm instructions.

For individuals

Keep proof of lawyer instructions

If you instruct a lawyer to file an appeal, get written confirmation. This case shows that without evidence, the court will not accept that your lawyer's mistake caused the delay. Save emails, texts, or letters showing what you asked your lawyer to do. This protects you if things go wrong.

Frequently asked questions

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Where do I file an extension of time for a Notice of Appeal in Kenya?+

If your extension is to start Certification Proceedings in the Court of Appeal, file it in the Court of Appeal, not the Supreme Court. The Supreme Court lacks jurisdiction for such applications.

Can I blame my lawyer for a late appeal in Kenya?+

Yes, but you must provide evidence of instructions you gave your lawyer. Without proof, the court will not excuse the delay. Keep written records of all communications with your lawyer.

What happens if I file an extension application in the wrong court in Kenya?+

The court will dismiss your application, and you may have to pay the other side's costs. You will also lose time, as you must start again in the correct court.

What are Certification Proceedings in the Kenyan Court of Appeal?+

Certification Proceedings are steps to get the Court of Appeal's permission to appeal to the Supreme Court. They must be initiated and determined in the Court of Appeal, including any extension of time applications.

Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Muia & another v Kababu", Case Analysis (2019). Application 19 of 2019. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2019/87/eng@2019-12-17

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