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Court of AppealAllowedNot stated in the judgment· [1986] KECA 52 (KLR)

Bernard Kiarie v Benson Kamau Njoroge [1986] KECA 52 (KLR)

Court of Appeal of Kenya
3 July 1986
JGJ. M. Gachuhi
513 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed you won't lose your appeal because your lawyer missed the deadline, provided you acted promptly once you found out.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi, delivered by Gachuhi JA on 3 July 1986, on an application under rule 4 of the Court of Appeal Rules for extension of time to file a notice of appeal out of time. The applicant, a layman who had been represented in the High Court suit before Mbaya J, was outside the chambers when judgment was delivered and his then advocate, Mr Khaminwa, never conveyed the effect of the judgment to him. By the time the applicant learned of the judgment and instructed new counsel to institute an appeal, the period for filing the notice of appeal had expired; the former advocate took no steps in the interim. The respondent, through Mr Khanani, opposed the application, contending that the court was disadvantaged because nothing could be obtained from the former firm to verify the applicant's allegations. The court held that it could not doubt the applicant's sworn affidavit and, relying on its prior decisions including George Muli Mwaravu vs Agnes Mwikali Mwaravu and John Mochu Kariuki vs Kagiri Waweru, applied the settled principle that where the delay is caused by an advocate and not the applicant, the applicant should not be penalised for the mistakes of his agent. The application was allowed: time to file the notice of appeal was extended to April 30, 1986, thereby validating the notice already filed out of time, with costs of the application to be costs in the appeal. Any aggrieved party was at liberty to apply to the Deputy Registrar for referral to the full court.

Key legal issues

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01

Whether delay caused by an applicant's advocate justifies extension of time to file a notice of appeal

Holding

Yes. Where the delay is attributable to the applicant's former advocate and not the applicant, the applicant should not be penalised for the mistakes of his agent, and the extension should be granted.

Reasoning

The applicant, a layman, was outside the chambers when judgment was delivered and his advocate did not convey its effect to him. On learning of the judgment he pursued the proceedings himself and instructed new counsel. The court found the sworn affidavit credible, noted prior decisions of the court granting extensions on similar allegations of advocate-caused delay, and held that delay caused by the agent is not attributable to the applicant.

p. 2

Legal principles established

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  • Under rule 4 of the Court of Appeal Rules, the court has an unfettered discretion to grant extension of time where the cause of delay does not lie with the applicant, and an applicant should not be penalised for the mistakes of his agent (advocate).

Court orders

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  1. 1.Extension of time within which to file the notice of appeal granted, up to April 30, 1986, validating the notice of appeal already filed out of time
  2. 2.Costs of the application to be costs in the appeal
  3. 3.Liberty to any aggrieved party to apply to the Deputy Registrar to refer the matter to the full court
On appeal from
High Court of Kenya
Not stated in the judgment
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules

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, "Bernard Kiarie v Benson Kamau Njoroge [1986] KECA 52 (KLR)", Case Analysis (1986). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/52/eng@1986-07-03

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