Kihuni v Gakunga [1985] KECA 5 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a late appeal where the delay was just nine days and caused by an advocate's oversight, not the client.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the court should exercise its discretion under rule 4 of the Court of Appeal Rules to extend time for lodging the record of appeal out of time
- 2.Whether the failure of the previous advocate to copy the letter of request for proceedings to the respondent as required by rule 81(2) disentitled the applicant from exclusion of time
- 3.Whether the preliminary objection on the supporting affidavit being sworn by a person other than the applicant was sustainable
Key legal issues
#Effect of failure to copy the letter of request for proceedings to the respondent under rule 81(2)
The applicant could not avail himself of the exclusion rule from the computation of the sixty-day period because the letter of request was not copied to the respondent.
Rule 81(2) requires the letter of request for copies of proceedings to be copied to the respondent for the time taken to obtain proceedings to be excluded from the sixty-day period. The previous advocate sent a copy of the letter of request for proceedings to the respondent but not the request itself as required, so the exclusion could not apply and the appeal was some 9 days late.
Scope of discretion under the amended rule 4
The discretion is free and is exercised judicially in accordance with the circumstances of each case; a few days' delay from an advocate's mistake may justify extension.
The earlier ruling relied on by the respondent was given under the old rule 4 before its 1984 amendment. The amended rule follows the principle in Gatti v Shoosmith, where a few days' delay caused by a legal adviser's mistake was held a proper case for granting leave. The court applies the same approach to the present small delay.
Fault of the advocate as opposed to the client
Where the advocate was at fault and had neither lodged the appeal nor applied for extension nor explained to the client, the delay may nonetheless be excused where it is small.
By August 14 the previous advocate had not lodged the appeal or sought extension, and had not explained to the client or the new advocate what happened. The fault lay with the advocate, not the client. Nonetheless, applying Gatti v Shoosmith, the very small delay due to the advocate's inadvertence warranted the exercise of discretion in the applicant's favour.
Legal principles established
#- The Court of Appeal's discretion under rule 4 is free and to be exercised judicially according to the circumstances of each case.
- Time taken to obtain copies of proceedings may be excluded in computing the 60-day period for instituting an appeal only if the request was made within thirty days of the decision and copied to the respondent.
- A small delay caused by the inadvertence of an advocate is a proper case for granting extension of time.
Court orders
#- 1.Application for extension of time allowed
- 2.The record of appeal to be lodged within 30 days
- 3.The respondents to have the costs of this application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Delivered the ruling allowing the application for extension of time to lodge the record of appeal out of time, applying the approach in Gatti v Shoosmith to the amended rule 4.
That being so, I apply the approach of Lord Green (as he then was) in Gatti v Shoosmith. I find that as the delay is very small, and due to the inadvertence of the advocate, that the application should be allowed.p. 3
- On appeal from
- High Court at Nyeri
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (discretion to extend time)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The discretion of this court is free to be exercised judicially in accordance with the circumstances of each case.
It is clear that, if the request for copies of proceedings is made within thirty days of the date of the decision, and the request is copied to the respondent; then such time taken to get the proceedings can be excluded when computing the time within which the appeal is to be instituted
I find that as the delay is very small, and due to the inadvertence of the advocate, that the application should be allowed.
The record of appeal will be lodged in 30 days and the respondents will have the costs of this application.
Issues in the judgment
#The judgment states the previous advocate 'had not sent a copy of the letter of request for proceedings to the respondent' but the text reads 'He had sent a copy of the letter of request for proceedings to the respondent, and so he could not avail himself of the exclusion rule' - the context indicates 'had NOT sent'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kihuni v Gakunga [1985] KECA 5 (KLR)", Case Analysis (1985). Civil Application No NAI 43 of 1984. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/5/eng@1985-06-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.