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Court of AppealDismissedNot stated in the judgment

JOSEPH KAAGI NDIRANGU and 10 Others vs COMMISSIONER OF LANDS and 13 Others [2002] KECA 136 (KLR)

Court of Appeal of Kenya
13 December 2002
913 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to excuse a late appeal, ruling lawyers must file appeal notices without waiting for clients or fees.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nyeri (Shah, JA) dismissing an application by eleven applicants for extension of time to lodge a notice of appeal and record of appeal out of time, brought under Rules 4 and 74 of the Rules of that Court. The intended appeal was against a decision of Mulwa, J in judicial review proceedings concerning letters of allotment issued by the Commissioner of Lands in 1995 over plots in the Gakoromone Area of Meru Municipality. Etyang, J had granted leave in December 1996 to apply for certiorari and prohibition, but Mulwa, J upheld a preliminary objection by the 7th and 9th respondents that the leave was a nullity, the statutory six-month period for seeking certiorari having expired before leave was sought. Shah, JA agreed that Mulwa, J had properly considered the time factor, citing a recent, unnamed decision of the Court delivered in Nyeri during the same session, and held that because prohibition was to follow the grant of certiorari, the intended appeal would be a non-starter and extension would be an exercise in futility. On the delay, the applicants' advocate, Mr. Albert, attributed the failure to file the notice of appeal to his client's absence amid family illness and bereavement, and to the need to obtain fees. The Court accepted the facts but held that a notice of appeal is a simple document which an advocate can lodge without the client or fees, and that no letter bespeaking the proceedings had been filed although such a letter requires neither instructions nor payment. Finding the reasons totally unsatisfactory and the application itself defective and not serious, the Court dismissed it with costs.

Questions the Court framed

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

  1. 1.Whether the eleven applicants should be granted extension of time to lodge their notice of appeal and record of appeal out of time under Rules 4 and 74 of the Rules of this Court.
  2. 2.Whether the reasons advanced for the failure to file the notice of appeal in time - the unavailability of the instructing client and the advocate's need to obtain fees - were acceptable.
  3. 3.Whether the intended appeal was a non-starter insofar as it concerned certiorari, the statutory six-month period for seeking certiorari having expired and the leave granted by Etyang, J having been held a nullity.
  4. 4.Whether the application was properly constituted and seriously made, given the absence of the chamber summons and notice of motion from the record and the fact that not all parties directly affected were before the Court.

Key legal issues

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01

Whether extension of time should be granted where the delay in filing the notice of appeal is attributed to the instructing client's absence and the advocate's lack of fees.

Holding

Refused. The absence of a client does not bar an advocate from lodging a notice of appeal, which is a simple document; the need to obtain fees was the real but unacceptable reason for the delay, and the explanation given was totally unsatisfactory.

Reasoning

The applicants' advocate, Mr. Albert, explained that his instructing client was unavailable - the client's sister was critically ill in Nyeri and died on 20th May 2002, and his mother was admitted to Isiolo District Hospital from 27th May to 6th June 2002 - and that he needed fees before filing. Shah, JA accepted the facts but held that a notice of appeal is a simple document requiring neither the client's presence nor payment of fees; the insistence on fees was the real and unacceptable reason, an advocate taking no chances on a matter of such importance.

p. 3
02

Whether extension of time could properly be granted where the intended appeal on certiorari was out of time and the leave to apply for judicial review had been held a nullity.

Holding

No. The intended appeal on certiorari would be a non-starter and the grant of extension would be an exercise in futility, the leave for judicial review having been a nullity.

Reasoning

The letters of allotment issued by the Commissioner of Lands in 1995, and it was common ground that the statutory six-month period for seeking certiorari had expired before Etyang, J granted leave on 10th December 1996. Mulwa, J so held when upholding the preliminary objection of the 7th and 9th respondents, a conclusion the Court had recently reached in Nyeri during the same session. Because the prohibition sought was to follow the grant of certiorari, the intended appeal as a whole would be a non-starter, and extending time would be an exercise in futility.

p. 3
03

Whether the application itself was properly before the Court and seriously made.

Holding

The application was defective and appeared not to be a serious application: it lacked the chamber summons and notice of motion, and not all parties directly affected by the intended appeal were before the Court.

Reasoning

The Court found the application riddled with problems. The chamber summons for leave and the notice of motion were absent from the record, obliging the Court to call for the superior court file to confirm that both certiorari and prohibition were sought. Not all parties directly affected by the intended appeal were before the Court, and although the application spoke of allocation letters for 133 plots, only eleven applicants were joined - a discrepancy not canvassed and left open. Together with the unsatisfactory explanation for delay, these defects marked the application as not serious.

p. 3

Legal principles established

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  • The absence of an instructing client does not excuse an advocate's failure to lodge a notice of appeal in time, a notice of appeal being a simple document that an advocate can and should file without waiting for the client.
  • Lack of fees is not an acceptable reason for an advocate's failure to file a notice of appeal in time, and filing a letter bespeaking copies of proceedings requires neither instructions nor payment of fees.
  • Extension of time to appeal will be refused where the intended appeal would be a non-starter, the grant of extension in such circumstances being an exercise in futility.
  • An advocate must act with diligence and take no chances, especially in a matter of importance; a totally unsatisfactory explanation for the late filing of a notice of appeal will defeat an application for extension of time.

Court orders

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  1. 1.The application for extension of time to lodge the notice of appeal and the record of appeal out of time is dismissed with costs.

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 at Meru
Jurisdiction invoked
Rules 4 and 74 of the Rules of this Court (Court of Appeal Rules), invoked for extension of time to lodge the notice of appeal and record of appeal out of time

Relief refused

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Extension of time to lodge the notice of appeal out of time

The explanation offered - the instructing client's absence amid family illness and bereavement, and the advocate's need to obtain fees - was rejected; a notice of appeal is a simple document that an advocate can lodge without the client or fees.

p. 3

Extension of time to lodge the record of appeal out of time

No letter bespeaking copies of the proceedings and ruling had been filed, although such a letter calls for neither instructions nor payment of fees; the reasons for the delay were totally unsatisfactory.

p. 3

Extension of time insofar as the intended appeal concerned certiorari

The six-month statutory period for seeking certiorari had expired before leave was granted, the leave was a nullity, and the intended appeal would be a non-starter; extension would be an exercise in futility.

p. 3

Costs

The application was dismissed with costs.

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 result I dismiss this application with costs.
p. 3Final orders - dismissal of the extension-of-time application with costs
the absence of a client does not bar an advocate from lodging a notice of appeal which is a simple document.
p. 3Extension of time - advocate's duty to file notice of appeal without the client
the intended appeal would be a non-starter and grant of extension of time would be an exercise in futility.
p. 3Extension of time - futility of the intended appeal
An advocate takes no chances especially on a matter of the importance that the nature of the application entailed.
p. 3Professional diligence in appellate practice
The reason given for non-filing, in time, of the notice of appeal is totally unsatisfactory.
p. 3Sufficiency of reasons for delay
Filing of such a letter calls for no instructions or payment of fees.
p. 3Letter bespeaking copies of proceedings
Mulwa, J properly considered the time factor and concluded that the leave granted was a nullity. This Court has said so in a recent decision in Nyeri during this very session.
p. 3Nullity of leave to apply for certiorari granted out of time
It is common ground that the statutory period of six months for seeking orders of certiorari had already expired.
p. 3Six-month statutory limitation for seeking certiorari

Issues in the judgment

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minor

The Court noted that the record before it was incomplete - the chamber summons for leave and the notice of motion were missing, requiring the Court to call for the superior court file to confirm the reliefs sought.

minor

The Court noted an unresolved discrepancy in the application - it referred to allocation letters in respect of 133 plots although only eleven applicants were before the Court - and expressly left the point open as it was not canvassed.

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 KAAGI NDIRANGU and 10 Others vs COMMISSIONER OF LANDS and 13 Others [2002] KECA 136 (KLR)", Case Analysis (2002). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/136/eng@2002-12-13

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