Joseph Wanjohi Njau v Benson Maina Kabau

as explained by the applicant was that the junior advocate was tasked to take the judgment. However, being an advocate of only two months standing, she apparently forgot to record the outcome of the appeal on the le and also to communicate that outcome to the senior advocate. It was during his routine checks in the les that the senior advocate noticed that there was no progress in the le. Upon inquiring from the junior advocate what had transpired on the day the judgment was delivered, she could not even recall. He thus sent his clerk to court to collect a copy of the judgment and thereafter conferred with the applicant for instructions, culminating in the ling of the instant application 9 days after the issue emerged. Issues Whether a mistake by a newly admitted advocate could be a ground for extension of time within which to le an appeal to the Court of Appeal. Held 1. The respondent viewed the delay as approximately ve months from the date of judgement to the date of ling this application. That was one way of looking at it. However, if the explanation for the delay was taken into account, the delay could be as short as 9 days from the date of obtaining a copy of the judgment, to the date of lling the application. Therefore, the delay ought to be considered in light of the explanation that had been advanced. 2. The reason for the delay in ling the notice of appeal was candidly explained by the applicant. The deposition that the junior counsel who took the judgment was only two months into practice and made the blunder that prevented the lling of the notice of appeal within the prescribed 14 days from the date of the judgment was not challenged and thus in the circumstances of the instant case, it was an excusable mistake of a newly admitted advocate, though much more was expected from her employer. 3. An arguable appeal is not one that has to necessarily succeed, but one which can be argued fully before the court. For the foreseeable future, the Court of Appeal still remained the court of the last resort for the majority of Kenyans, and it was not advisable, unless for compelling reasons, to shut out parties from ventilating their grievances in the Court. Thus, since the dispute in the instant case revolved around land, it would be prudent to have it determined on merit on appeal. Application allowed with costs to the respondent. Citations East Africa Mutiso, Leo Sila v Rose Hellen Wangari Civil Application No Nai 255 of 1997 (unreported) - (Followed) United Kingdom Ketterman vs Hansel Properties [1988] 1 All ER 38 - (Explained) Statutes East Africa 1. Appellate Jurisdiction Act (cap 9) sections 3A, 3B - (Interpreted) 2. Court of Appeal Rules, 2010 (cap 9 Sub Leg) rule 4 - (Interpreted) 2. Registered Land Act (cap 300) (Repealed) sections 27, 28 - (Interpreted) RULING 1. Before me is a Motion on Notice dated and led in court on 22nd March, 2012 for extension of time to le a notice of appeal and a memorandum of appeal. The application is brought under Rule 4 of the Court of Appeal Rules and Sections 3A and 3B, presumably of the Appellate Jurisdiction Act, Cap 9 Laws of Kenya. The application is supported by adavits sworn by two advocates of the High Court of Kenya, Mr. Joshua Magee wa Magee Maina and Ms Claire Nyaguthii Muriithi, explaining and taking https://new.kenyalaw.org/akn/ke/judgment/keca/2013/544/eng@2013-06-13 2

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responsibility for the applicant’s failure to le the notice of appeal and record of appeal within the time prescribed by the rules of this Court. 2. The background to the appeal, as far as I can gather from the documents annexed to the application is as follows. The applicant, claiming to be the registered proprietor of the parcel of land known as Mwerua/Kanyokora/1206 (the suit property), led a suit against the respondent before the Senior Resident Magistrate’s Court at Baricho. He prayed for among others, a declaration that the respondent was in unlawful occupation of the suit property, eviction of the respondent therefrom, a permanent injunction and mesne prots. In his defence and counterclaim, the respondent pleaded that he had purchased and was in occupation of the suit property and prayed for a declaration that the applicant’s registration as proprietor of the suit property was fraudulent, an order for cancellation of the registration and registration of the suit property in his name. 3. The subordinate court found in favour of the applicant and dismissed the respondent’s counterclaim. The respondent lodge an appeal in the High Court of Kenya at Embu (Muchelule, J.) who on 19th October, 2011, allowed the appeal and set aside the judgment. He ordered the register to be rectied by canceling the name of the applicant and replacing therefor the name of the respondent. It is that judgment that the applicant is seeking extension of time to appeal against. 4. The explanation for the delay in ling the notice of appeal and the record of appeal as disclosed in the said adavits of Mr. Maina and Ms Muriithi is that Ms Muriithi was deputed to take the judgment on 19th October, 2011, which she actually did. However, being an advocate of only two months standing, she forgot to record on the le the outcome of the appeal and also to communicate that outcome to Mr. Maina. It was only in mid-March, 2012, while routinely going through his les that Mr. Maina noticed that there was no progress in the le. Upon inquiring from Ms Muriithi what had transpired on judgment day, she could not even recall. So he sent his clerk to court who obtained a copy of the judgment on 13th March, 2012. Thereafter he conferred with the applicant for instructions, culminating in the lling of this application on 22nd March, 2012, some 9 days after learning about and obtaining the judgment. 5. Mr. John Ndana, learned counsel for the respondent was less than impressed by the application and the reasons in support. In his view, the delay of ve months from the date of delivery of the judgment to the date of ling this application was inexcusable; there was glaring lack of diligence on the applicant’s part; the application was an afterthought; the applicant was spurred into action only after service of the respondent’s bill of costs; the appeal was not arguable and that the judgment of the High Court had been implemented and the suit premises had been registered in the name of the respondent. Mr. Ndana did not disclose when he had served the bill of costs and when execution of the judgment had taken place. No evidence was proered on either issue. Mr. Maina, though not able to conrm execution of the judgment, did not see it as a hindrance to the applicant’s intended appeal because if successful, the register can still be rectied once more. 6. The grounds upon which this Court exercises its discretion in an application for extension of time were succinctly set out in Leo Sila Mutiso vs. Rose, Civil Application No. Nai. 255 of 1997 (unreported) as follows: “ It is now settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general, the matters which this Court takes into account in deciding whether to grant an extension of time are, rst, the length of delay; secondly, the reason for the delay; thirdly (possibly), the chances of the https://new.kenyalaw.org/akn/ke/judgment/keca/2013/544/eng@2013-06-13 3

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appeal succeeding if the application is granted and fourthly; the degree of prejudice to the respondent if the application is granted”. 7. The rst issue is the length of delay. The respondent sees the delay as approximately ve months, from the date of judgment to the date of ling this application. That is one way of looking at it, if the explanation for the delay is not taken into account. If it is, the delay may be as short as 9 days, from the date of obtaining a copy of the judgment, to the date of lling the application. In my view, in this case the length of delay must be considered in light of the explanation that has been advanced. 8. I take it that the reason for the delay has been candidly explained. The deposition that the junior counsel who took the judgment was only two months into practice and made the blunder that prevented the lling of the notice of appeal within the prescribed 14 days from the date of the judgment is not challenged. I would, in the particular circumstances of this case be willing to excuse the mistake of a newly admitted advocate, though much more must be expected from Mr. Maina, her employer. Having said that, it is important to also bear in mind Lord Grith’s words in Ketterman vs Hansel Properties [1988] 1 All ER 38: “ Legal business should be conducted eciently. We can no longer aord to show the same indulgence towards the negligent conduct of litigation as was perhaps possible in a more leisured age. There will be cases in which justice will be better served by allowing the consequences of the negligence of lawyers to fall on their own heads rather than allowing an amendment at a very late stage in the proceedings.” 9. On the chances of the appeal succeeding, the applicant has annexed draft grounds of appeal where he contends, among other things, that the respondent’s counterclaim which was allowed was barred by the Limitation of Actions Act, Cap 22 Laws of Kenya and that his rights under sections 27 and 28 of the Registered Land Act, Cap 300 (now repealed) were not considered. The Court of Appeal has observed that an arguable appeal is not one that must necessarily succeed, but is one which ought to be argued fully before the court. For the foreseeable future the Court of Appeal will still remain the court of last resort for the majority of Kenyans, and it is not advisable in my opinion, unless for compelling reasons, to shut out parties from ventilating their grievances in this Court. This dispute revolves around land and I think it would be prudent to have it determined on merit on appeal. 10. The respondent, in a bid to show the prejudice that he would suer if this application is granted dubbed the application as stratagem to delay him from enjoying the judgment in his favour. The respondent has been in occupation of the suit property, at least that is the reason why the suit in the subordinate court sought his eviction. He now states that the judgment of the High Court has been executed and the suit property is registered in his name. In the circumstances I do not think allowing this application will visit upon the respondent any greater hardship or prejudice. 11. Taking into account all the foregoing matters and bearing in mind the overriding objective in Section 3A of the Judicature Act to facilitate the just, expeditious, proportionate and aordable resolution of the appeals as well as the duty of the Court under Section 3B of the same Act, I allow this application and extend the period for lling the notice of appeal and the record of appeal. The Notice of Appeal shall be led and served upon the respondent within seven (7) days from today and the record of appeal shall be led and served within fourteen (14) days from the date of service of the notice of appeal. 12. The respondent shall have the costs of this application. DATED AND DELIVERED AT NYERI THIS 13TH DAY OF JUNE, 2013. K. M’INOTI https://new.kenyalaw.org/akn/ke/judgment/keca/2013/544/eng@2013-06-13 4

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………………………………. JUDGE OF APPEAL I certify that this is a true copy of the original. DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2013/544/eng@2013-06-13 5

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