Jacob Mwangi H. Murira & another (as administrators of the Estate of the Late Hadad Murira Karukwa & Waweru Karukwa) v John Mwage Kariuki [2001] KECA 187 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a late appeal because the High Court took two years to deliver judgment and the lawyer never told his client.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there was inordinate delay in lodging the application for extension of time
- 2.Whether the advocate's failure to lodge a notice of appeal without instructions should bar the application (the respondent's sole ground of objection)
- 3.Whether extension of time to lodge the notice of appeal and the appeal should be granted, and on what terms
Key legal issues
#Whether the applicants were guilty of inordinate delay in lodging the application for extension of time
No. The application lodged on 31st July 1998 followed promptly on the applicant's discovery of the judgment and was filed with due despatch.
The applicant learned of the judgment on 24th June 1998, was told by his advocate to pay his fees and take the file elsewhere, collected the file on 10th July 1998 and handed it to new advocates with instructions to lodge and prosecute the intended appeal. The application was lodged on 31st July 1998. The court found no inordinate delay and held the application was filed with due despatch.
Whether an advocate is obliged to lodge a notice of appeal even without instructions, and whether his failure should be visited on the client
The ratio of the two Kwach JA rulings relied on by the respondent was not applied; on these peculiar facts the advocate's reluctance could not be placed at the applicant's door.
The respondent's sole objection was that Mr Maini ought to have lodged a notice of appeal even without instructions, relying on two rulings of Kwach JA whose ratio was that an advocate needs no instructions to lodge a notice of appeal costing Shs.450/= in court fees. Shah JA held that neither case involved delay by the court below so extreme as to make counsel give up, and that the applicant, who acted promptly on learning of the judgment, should not be punished for his advocate's reluctance.
Whether extension of time should be granted and on what terms
Yes. The decisive factor was the inexcusable delay of nearly two years in the delivery of judgment by the superior court; extension was granted with the notice of appeal due in ten days and the record of appeal in thirty days thereafter.
The factor that weighed with the court was the inexcusable delay of nearly two years in the delivery of judgment by the superior court, which probably caused the advocate to abandon the matter. Balancing that against the respondent's objection, and applying the principle that each case turns on its own facts, the single Judge of Appeal exercised his discretion in favour of the applicants and granted the extension on terms as to time.
Legal principles established
#- Applications for extension of time are fact-specific; each case must be dealt with on its own peculiar facts rather than by the mechanical application of earlier rulings.
- A litigant who acts expeditiously upon learning of a judgment should not be penalised for the advocate's failure to lodge a notice of appeal, particularly where the court below delayed inordinately in delivering that judgment.
- Inordinate delay by the superior court in delivering judgment is a weighty consideration in the exercise of the discretion to extend time for lodging an appeal.
Court orders
#- 1.The application for extension of time is allowed
- 2.The notice of appeal to be lodged within the next ten days
- 3.The record of appeal to be lodged within 30 days of the lodgment of the notice of appeal
- 4.Costs of the application to be costs in the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya (the superior court)
- Civil Appeal No. 380 of 1992
- Jurisdiction invoked
- Not expressly stated in the judgment; the matter is an application to the Court of Appeal for extension of time to lodge a notice of appeal and the appeal out of time
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.
In the exercise of my discretion I allow this application and order that the notice of appeal be lodged within the next ten days and that the record of appeal be lodged within 30 days of the lodgment of the notice of appeal. Costs of this application will be costs in the intended appeal.
Each case must be dealt with in accordance with its own peculiar facts.
What has weighed on my mind is the delay in the delivery of judgment in the superior court. With the greatest of respect to the learned Judge, the delay is inexcusable.
I keep in mind the fact that as soon as the applicant who was still alive became aware of the judgment he took expeditious steps to get on with the process of appeal. He should not be punished for that.
The ratios decidendi of these two cases are that an advocate does not need instructions to lodge a notice of appeal which costs - by way of court fees - Shs.450/= only.
Issues in the judgment
#The judgment text does not state the title or number of the application before the Court of Appeal, and the respondent is never named; only the number of the appeal in the superior court (Civil Appeal No. 380 of 1992) appears.
The second Kwach JA ruling is referred to inconsistently, first as 'Kobi Katua v. Michael Mutisya Kithome' and later as 'the Kathua case'; the first case is also printed as 'Esso Keny a Limited', apparently typographical.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jacob Mwangi H. Murira & another (as administrators of the Estate of the Late Hadad Murira Karukwa & Waweru Karukwa) v John Mwage Kariuki [2001] KECA 187 (KLR)", Case Analysis (2001). Not stated in the judgment (intended appeal from Civil Appeal No. 380 of 1992, superior court). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/187/eng@2001-03-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.