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Court of AppealAllowedNot stated in the judgment (intended appeal from Civil Appeal No. 380 of 1992, superior court)

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)

Court of Appeal of Kenya
29 March 2001
887 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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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

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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 Shah JA on 29th March 2001, on an application for extension of time to lodge a notice of appeal and the appeal out of time. The intended appeal lies against the judgment of the superior court (Owuor J) in Civil Appeal No. 380 of 1992. The hearing concluded on 24th June 1996, but judgment was not delivered until 9th June 1998, a delay of nearly two years during which advocates on both sides complained to the Law Society of Kenya and one of the applicants, Hadad Murira Karukwa, died. The applicant's then advocate, Mr K.M. Maini, appeared when judgment was delivered but never told his client, Waweru Karukwa, of the result; on 24th June 1998 he told the client to pay his fees and take the file to another advocate. The file was collected on 10th July 1998 and handed to new advocates, and the application was lodged on 31st July 1998. Following the death of Hadad Murira Karukwa, Tunoi JA ordered on 8th May 2000 his substitution by Jacob Mwangi H. Murira and John Wambugu Hadad, administrators of his estate. The respondent objected, relying on two rulings of Kwach JA for the proposition that an advocate needs no instructions to lodge a notice of appeal. Shah JA held that each case turns on its own peculiar facts, found no inordinate delay in lodging the application, distinguished those rulings because neither involved comparable delay by the court below, and treated the inexcusable delay in delivering judgment as decisive. He allowed the application: notice of appeal within ten days, record of appeal within thirty days of lodgment, with costs of the application to be costs in the intended appeal.

Questions the Court framed

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

  1. 1.Whether there was inordinate delay in lodging the application for extension of time
  2. 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. 3.Whether extension of time to lodge the notice of appeal and the appeal should be granted, and on what terms

Key legal issues

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01

Whether the applicants were guilty of inordinate delay in lodging the application for extension of time

Holding

No. The application lodged on 31st July 1998 followed promptly on the applicant's discovery of the judgment and was filed with due despatch.

Reasoning

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.

p. 2
02

Whether an advocate is obliged to lodge a notice of appeal even without instructions, and whether his failure should be visited on the client

Holding

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.

Reasoning

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.

p. 2
03

Whether extension of time should be granted and on what terms

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The application for extension of time is allowed
  2. 2.The notice of appeal to be lodged within the next ten days
  3. 3.The record of appeal to be lodged within 30 days of the lodgment of the notice of appeal
  4. 4.Costs of the application to be costs in the intended appeal

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 (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

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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.

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.
p. 2Final orders - extension of time granted on terms
Each case must be dealt with in accordance with its own peculiar facts.
p. 2Fact-specific exercise of the extension-of-time discretion
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.
p. 2Delay by the court below as a discretionary factor
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.
p. 2Diligent client not penalised for advocate's default
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.
p. 2Ratio of the distinguished Kwach JA rulings as characterised by this Court

Issues in the judgment

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material

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.

minor

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

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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, "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.