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Court of AppealDismissedNot stated in the judgment

Joseph Mbugua Dedan Gachumi & another v Geoffrey Mbugua Dedan [1997] KECA 140 (KLR)

Court of Appeal of Kenya
10 December 1997
418 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to extend appeal time, ruling that a litigant cannot blame delays caused by switching between different law firms.

What this practically means

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Executive summary

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This was an application under Rule 4 of the Court of Appeal Rules for extension of time to serve a Notice of Appeal and file the record of appeal. The applicants blamed their former advocate, Onyango Otieno, who had filed the notice of appeal in time but failed to collect the record of proceedings and judgment after being notified on 21st November 1996 that they were ready. A second firm, Oyatta & Associates, was appointed on 26th November 1996 but also did nothing: although the proceedings were paid for on 18th February 1997 and ready on 6th March 1997, they were not collected until 18th August 1997, after a third firm had been instructed. Akiwumi JA held that this pattern of moving from one firm of advocates to another meant the delay was attributable to the applicants themselves; the delay was inordinate in the surrounding circumstances and had not been properly accounted for. On the subsidiary point, the respondent argued that the certificate of delay could not be relied on under Rule 31(1) and (2) because the request letter was not copied to him. The court held that this defect alone would not have prevented exercise of its unfettered discretion under Rule 4; the application failed solely because the delay was inexcusable and inordinate. The application was dismissed with costs to the respondent.

Questions the Court framed

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

  1. 1.Whether the applicants should be granted extension of time to serve the Notice of Appeal and file the record of appeal under Rule 4
  2. 2.Whether the delay in instituting the appeal was inordinate and properly explained
  3. 3.Whether the certificate of delay could be relied upon under Rule 31(1) and (2) given that the request letter was not copied to the respondent

Key legal issues

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01

Whether the delay in filing the record of appeal was inordinate and excusable

Holding

The delay was inordinate and attributable to the applicants, who changed advocates repeatedly and did not properly account for the inaction; extension of time was refused.

Reasoning

The first advocate filed the notice of appeal in time but failed to collect the proceedings and judgment when notified they were ready in November 1996. A second firm, appointed in November 1996, paid for and was notified of the proceedings in early 1997 but did not collect them until August 1997, after a third firm was instructed. The court held this pattern of 'shopping' between advocates meant the delay was the applicants' own, and it was not otherwise accounted for.

p. 2
02

Effect of a certificate of delay obtained without copying the request to the respondent

Holding

The procedural defect in obtaining the certificate of delay would not, standing alone, have defeated the application; the discretion under Rule 4 is unfettered and turns on whether the delay is inordinate and explained.

Reasoning

The respondent argued the certificate could not be relied on under Rule 31(1) and (2) because the request letter was not copied to him. The court accepted the point was arguable but held it was not decisive: even setting the certificate aside, the applicants' delay was inordinate and unexplained, so the application failed on that primary ground regardless of the certificate's status.

p. 2

Legal principles established

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  • A litigant bears responsibility for the inaction of successive advocates they instruct; delay caused by changing firms of advocates is attributable to the litigant and may be treated as inordinate and inexcusable.
  • A certificate of delay requested without notice to the respondent is not, by itself, a bar to the court exercising its discretion under Rule 4; the decisive factor remains whether the delay is inordinate and explained.

Court orders

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  1. 1.The application for extension of time is dismissed on the ground that the delay is inexcusable and inordinate
  2. 2.The respondent is awarded the costs of the application

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time)

Relief refused

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Extension of time for service of the Notice of Appeal and filing of the record of appeal

The delay was inordinate and attributable to the applicants themselves, who changed advocates repeatedly and failed to account for the delay

p. 2

Costs

The respondent will have his costs for this application.

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.

The applicants seem to have been shopping from one firm of advocates to another and the delay exhibited in not filing the appeal within time, as illustrated by the Certificate of Delay which is attached to the affidavit in support of the application
p. 2Litigant responsibility for successive advocates' inaction
the total delay that has occurred and which to my mind is inordinate within the context of the surrounding circumstances, can be attributed to the applicants. What is more, this inordinate delay has not otherwise been properly accounted for.
p. 2Inordinate and unexplained delay
In the result, the application is dismissed solely on the ground that the delay in taking the necessary steps to institute the appeal by the appellants, is inexcusable and inordinate. The respondent will have his costs for this application.
p. 2Final orders and costs

Issues in the judgment

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minor

The judgment does not state the case number, the parties' names, or the decision appealed from; the coram lists only one Judge of Appeal, so it is unclear whether this was a single-judge ruling under Rule 4 rather than a full bench decision.

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, "Joseph Mbugua Dedan Gachumi & another v Geoffrey Mbugua Dedan [1997] KECA 140 (KLR)", Case Analysis (1997). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/140/eng@1997-12-10

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