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Court of AppealPartially AllowedApplication filed in Kisumu on December 2, 1986 (arising from Kakamega High Court Civil Case No 70 of 1980)

Nzoia Sugar Co Ltd v Collins Fungututu [1986] KECA 48 (KLR)

High Court of Kenya / Court of Appeal (ruling delivered by a Judge of Appeal)
24 December 1986
1,657 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's High Court let Nzoia Sugar appeal late because lawyers—not the client—caused the delay, but the company paid all the costs.

What this practically means

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Executive summary

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This is a ruling by Platt, JA delivered at Nairobi on December 24, 1986 in an application for leave to lodge a notice of appeal and record of appeal out of time, arising from Kakamega High Court Civil Case No 70 of 1980 in which Collins Fungututu obtained judgment of Kshs 97,299.00 against Nzoia Sugar Co Ltd on July 25, 1985. No Notice of Appeal was lodged because of a dispute between the Nairobi instructing advocates (Hamilton Harrison and Mathews) and the Kisumu-based advocates (Khamati Minishi & Co) over who bore responsibility for filing one. The respondent, Mr Nakhone for Mr Fungututu, raised preliminary objections on authority and on the Notice of Motion's heading, both of which failed: authority had been given on May 15, 1986, and the omission of 'Court of Appeal Rules' from the heading caused no real difficulty since rules 4 and 42 could only refer to those Rules. The court took the opportunity to set out the proper practice between instructing and instructed advocates: instructing advocates must give instructions on appeal when taking instructions, and instructed advocates must ask about appeals where the brief is silent, given postal delays exceeding the fourteen-day period for lodging notice of appeal. Weighing the parties' prejudices, which were found to cancel each other out, the court relieved the client of the advocates' misunderstanding, extended time for lodging the Notice of Appeal within 14 days and the record of appeal within 60 days, and ordered the applicant to pay all costs of the application and adjournments. A stay of execution application had been withdrawn earlier.

Questions the Court framed

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

  1. 1.Whether Mr Minishi had authority to bring the application for extension of time
  2. 2.Whether the Notice of Motion was defective for not specifying the legal authority (rules 4 and 42)
  3. 3.Whether, despite the delay and alleged prejudice to the respondent, time should be extended to lodge notice of appeal and record of appeal out of time

Key legal issues

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01

Authority of the instructing advocate to bring the application

Holding

Mr Minishi had clear authority to bring the application, given on May 15, 1986.

Reasoning

The respondent objected that Mr Minishi lacked authority, but the replying affidavit annexing all the correspondence answered that objection. The correspondence showed that on May 15, 1986 instructions to apply for leave to appeal out of time were given by the Nairobi advocates, so the applicant had clear authority to bring the application.

p. 2
02

Defect in the Notice of Motion heading

Holding

The omission of the words 'Court of Appeal Rules' from the heading caused no real difficulty and the preliminary point failed.

Reasoning

Rules 4 and 42 could only refer to the Court of Appeal Rules, so no party could be genuinely taken by surprise. The point on the stay portion under rule 5(2)(b) was withdrawn, and the remaining complaint about the heading was dismissed.

p. 2
03

Extension of time notwithstanding delay and prejudice

Holding

Time was extended because the delay arose from a genuine misunderstanding between advocates for which the client was not at fault, and the prejudices of the parties cancelled each other out.

Reasoning

The court weighed the respondent's prejudice in having received and used the decretal sum against the applicant's own culpability for the delay. Since the client could not be blamed for the misunderstanding between the Nairobi and rural advocates, and the decretal sum and unpaid taxed costs could be safeguarded, the interests of justice favoured relieving the client and extending time, subject to costs.

p. 3

Legal principles established

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  • It is primarily the duty of instructing advocates to give instructions that the instructed advocates should file notice of appeal where the case is decided against the client, because authority stems from the instructing advocates.
  • An instructed advocate who finds a gap in the brief on a possible appeal must ask what his instructions are, because postal delays exceed the fourteen days allowed to lodge a Notice of Appeal.
  • Clients should not be penalised for a misunderstanding between their advocates where the client was not at fault.

Court orders

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  1. 1.Time extended for the applicant to lodge Notice of Appeal within 14 days
  2. 2.Record of appeal to be lodged within 60 days of the date on which the notice is lodged
  3. 3.Applicant to pay all costs of the application and the adjournments

The bench

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

majority

Wrote the judgment

On appeal from
High Court of Kenya, Kakamega
Civil Case No 70 of 1980
Jurisdiction invoked
Rules 4 and 42 of the Court of Appeal Rules (extension of time and Notice of Motion)

Relief refused

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Stay of execution application

Withdrawn because the decretal sum had been deposited with the plaintiff's advocate and no notice of intention to appeal had ever been filed

p. 2

Costs of the application against the respondent

Applicant caused the delay and was ordered to bear all costs of the application and adjournments

p. 3

Costs

The applicant will pay all costs of the application and the adjournments which had to be granted.

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 primarily the duty of the instructing advocates to give instructions that the advocates instructed should file notice of appeal, in the event of the case being decided against the instructed advocates.
p. 3Duty of instructing advocates regarding notices of appeal
instructions to prosecute or to defend should include instructions as to an appeal.
p. 3Scope of instructions to advocates
there was clearly a misunderstanding between the advocates, and normally clients should not be penalised, where the client could not have been at fault in any way himself.
p. 2Clients not penalised for advocates' misunderstanding
Notice of Appeal should be lodged within 14 days of today's date; the record of appeal should be lodged within 60 days of the date on which the notice has been lodged. The applicant will pay all costs of the application and the adjournments which had to be granted.
p. 3Final orders - extension of time and costs

Issues in the judgment

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minor

Internal date inconsistency: a letter in the sequence of Nairobi advocates' requests for copies is dated 'December 17, 1986' where November 15, 1985 and January 10, 1986 would be expected chronologically; also Mr Minishi's reply is dated 'April 25, 1985' although it follows an April 18, 1986 letter.

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, "Nzoia Sugar Co Ltd v Collins Fungututu [1986] KECA 48 (KLR)", Case Analysis (1986). Application filed in Kisumu on December 2, 1986 (arising from Kakamega High Court Civil Case No 70 of 1980). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/48/eng@1986-12-24

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