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Court of AppealDismissedNai 71 of 1984 (KMU 5/84)· [1986] KECA 90 (KLR)

SANGURA MABUSI v MASINDE MABUSI [1986] KECA 90 (KLR)

Court of Appeal of Kenya
11 February 1986
JGJM Gachuhi
1,079 words in judgment
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The bottom line

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The Court of Appeal refused extra time to file an appeal record because no Notice of Appeal existed for the ruling being challenged, even though the delay was the lawyer's fault.

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 Kisumu by Gachuhi, Ag Judge of Appeal, on an application by Sungura Mabusi, the original defendant in Kakamega Civil Suit No 39 of 1980, for extension of time to file a record of appeal out of time under rule 4. The underlying dispute had been referred by consent to arbitration before the District Officer, Kimilili Division; the award was arbitrated on February 10, 1982 and filed on March 23, 1982, arguably out of time. Judgment in terms of the award was entered on July 28, 1982, set aside on October 29, 1982 for want of notice of filing of the award, and the applicant's later applications to set aside the dismissal of his application to set aside the award were dismissed on August 18, 1983 and June 28, 1984. The court held that an applicant for extension of time must show a valid Notice of Appeal against the particular order; if none exists, he must first seek leave to file a Notice of Appeal out of time. The Notice of Appeal here related to the June 28, 1984 ruling, whereas the applicant's affidavit showed he was in substance appealing the August 18, 1983 ruling, against which no notice had been given. Although the court accepted that the failure to appeal was attributable to the applicant's advocates and that a litigant should not be penalised for his counsel's mistake, the application was refused and dismissed for non-compliance with proper procedure. Any aggrieved party may apply to the Deputy Registrar for referral to the full court. No costs order was recorded.

Key legal issues

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01

Whether extension of time to file a record of appeal can be granted where no Notice of Appeal exists against the order under challenge

Holding

The application fails because the Notice of Appeal filed relates to the ruling of June 28, 1984, while the applicant's grounds target the ruling of August 18, 1983, against which no Notice of Appeal was given.

Reasoning

Rule 4 applications for extension of time to file a record of appeal presuppose a valid Notice of Appeal against the specific order. Where none exists, the applicant must first seek leave to file a Notice of Appeal out of time. The applicant's own affidavit showed he intended to appeal against the August 18, 1983 ruling but never gave notice of appeal against it, so extension of time could not be founded on that ruling.

p. 2
02

Whether the blame of previous advocates in failing to file the appeal justifies extension of time

Holding

The fault lay with the applicant's several advocates, not the litigant personally, and it is not proper to penalise a litigant for his counsel's mistake.

Reasoning

The applicant had instructed his advocate to file the appeal against the August 18, 1983 ruling but this was not done. The court accepted that the applicant had been represented and advised by several advocates and the failure was theirs. However, this principle did not save the application because the underlying procedural defect - absence of a Notice of Appeal against the relevant ruling - remained uncorrected.

p. 2

Legal principles established

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  • To obtain extension of time to file a record of appeal, the applicant must show a valid Notice of Appeal against the particular order; if none was filed, he must first seek leave to file a Notice of Appeal out of time.
  • A litigant should not be penalised for the mistake or fault of his advocates in failing to file an appeal in time.
  • Even where the subject matter is land, proper procedure for placing the matter before the court must be complied with.

Court orders

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  1. 1.The application for extension of time to file the record of appeal out of time is refused and dismissed
  2. 2.Any party aggrieved by this ruling may apply to the Deputy Registrar in writing to refer the matter to the full court
On appeal from
High Court of Kenya
Kakamega Civil Suit No 39 of 1980
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time to file record of appeal out of time)

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, "SANGURA MABUSI v MASINDE MABUSI [1986] KECA 90 (KLR)", Case Analysis (1986). Nai 71 of 1984 (KMU 5/84). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/90/eng@1986-02-11

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