Kihuni v Gakunga [1985] KECA 114 (KLR)
The bottom line
#Kenya's Court of Appeal extended appeal time because a lawyer's inaction, not the client's fault, caused a short nine-day delay.
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 preliminary objection regarding the authority of Mr Patrick Irungu to mount the application defeated the application
- 2.Whether the court should exercise its discretion under the amended rule 4 to extend time for lodging the record of appeal, given that the delay was attributable to the inactivity/fault of the previous advocate
Key legal issues
#Whether fault of the previous advocate justifies extension of time to lodge an appeal under the amended rule 4
Yes; a delay of nine days caused by the advocate's inactivity and inadvertence warranted an extension, applying the Gatti v Shoosmith approach.
The court distinguished the earlier ruling in Civil Appeal No 33 of 1983 as decided under the old, unamended rule 4. Applying Gatti v Shoosmith, where a short delay caused by a legal adviser's mistake justified leave, the court held the discretion is judicial and fact-specific. The previous advocate neither lodged the appeal nor applied for extension nor copied his letter of request to the respondent, so he could not claim the exclusion period; fault lay with the advocate, not the client.
Computation of the 60-day period under rule 81(1) and (2)
Time taken to obtain proceedings is excluded only if the request was made within thirty days and copied to the respondent; here it was not copied, so the applicant was nine days late.
Rule 81(1) requires lodging within 60 days of the notice of appeal, i.e. by August 14, 1984. The exclusion in rule 81(2) was unavailable because the previous advocate's letter of request was not copied to the respondent, as the rule visualizes may happen. The advocate had done nothing by the deadline, so the applicant was some nine days late.
Legal principles established
#- Where a request for copies of proceedings is made within thirty days and copied to the respondent, the time taken to obtain the proceedings is excluded in computing the sixty-day period for instituting the appeal; without a copied request, the exclusion is unavailable.
- Under the amended rule 4, the discretion to extend time is free and is to be exercised judicially according to the circumstances of each case; a short delay caused by an advocate's mistake may properly be excused.
- A delay attributable to the advocate's fault rather than the client's is a proper ground for granting an extension of time.
Court orders
#- 1.Leave granted to lodge the record of appeal out of time
- 2.The record of appeal to be lodged within 30 days
- 3.Respondent awarded the costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Nyeri
- High Court Civil Case No 110 of 1983
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (as amended in 1984), on an application for extension of time to lodge an appeal
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.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kihuni v Gakunga [1985] KECA 114 (KLR)", Case Analysis (1985). Court of Appeal Civil Application (from High Court Civil Case No 110 of 1983). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/114/eng@1985-06-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.