Concord Insurance Company Limited v Susan Nyambura Hinga [2003] KECA 108 (KLR)
The bottom line
#The Court of Appeal gave Concord Insurance a second chance, ruling that a lawyer's honest mistakes shouldn't cost a client their appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant should be granted extension of time to lodge a fresh notice of appeal and the record of appeal out of time under rule 4 of the Court's Rules.
- 2.Whether the applicant's advocate was indolent and the resulting delay inordinate, given that the proceedings were not supplied to him until 14th May 2002.
- 3.Whether the mistakes in the notice of appeal (references to a non-existent 'ruling') and the wrong date on the certified copy of the judgment should be laid at the door of the litigant.
- 4.Whether the intended appeal is frivolous.
- 5.Whether the extension should be granted on conditions, and on what terms as to costs.
Key legal issues
#Whether the delay in lodging the record of appeal was inordinate and attributable to the applicant's indolence
No. The court accepted as a fact that the applicant's advocate was not supplied with the proceedings until 14th May 2002, corroborated by the Registrar's certificate of delay, and that once aware of the problems counsel acted diligently, so the resulting delay was not inordinate.
The Judge found as a fact, corroborated by the Registrar's certificate of delay and the contents of the proceedings themselves, that the applicant's advocate was not supplied with the proceedings until 14 May 2002, so he could not earlier have known of the discrepancies in the notice of appeal and the judgment date. Once alerted, counsel obtained correction of the judgment date on 19 July 2002, withdrew the defective notice under rule 93 on 1 August 2002 and filed the extension application on 28 August 2002. The court declined to characterise this as indolence.
Whether mistakes of counsel should be laid at the door of the litigant
No. In normal circumstances, mistakes of counsel ought not to be laid at the door of the litigant; mistakes by courts and counsel will be made and corrected, and counsel's slips should not defeat a litigant's right of appeal.
The notice of appeal described the judgment as a 'ruling', and the certified copy bore the wrong date of delivery. The Judge treated these as the ordinary mistakes of courts and counsel which will be made and corrected. Because the litigant enjoyed an 'undoubted right of appeal' and had consistently wanted to appeal, counsel's slips were not permitted to defeat that right; in normal circumstances such mistakes are not laid at the door of the litigant.
Whether the intended appeal is frivolous
No. The intended appeal raises an important issue of liability of an insurer to pay damages for injuries suffered by a passenger in a private vehicle as opposed to one in a passenger-service vehicle.
An essential element of the rule 4 discretion is whether the intended appeal is arguable. The court identified the substantive question the appeal would raise: whether an insurer is liable to pay damages for injuries suffered by a passenger in a private vehicle, as opposed to a passenger-service vehicle. That question was held to be 'an important issue', so the appeal was not frivolous and the applicant's right of appeal carried real weight in the balance.
Whether extension of time may be granted subject to conditions
Yes. The discretion is 'almost unfettered' and was exercised on condition that the applicant pay the respondent Shs.8,000/= as costs of the application within 30 days, failing which the application would stand dismissed with costs.
The Judge described his discretion to extend time as 'almost unfettered' but exercised it on terms. The applicant was required to pay the respondent Shs.8,000/= as the costs of the application within 30 days, and the order contained a self-executing default clause: if the condition was not fulfilled, the application would stand dismissed with costs. This shows that rule 4 relief may be granted conditionally to protect the responding party.
The decree bearing the erroneous judgment date of 20th December 2001
The erroneously dated decree is not the decree that may go into the record of appeal; if the applicant's advocate includes it nonetheless, he does so at his client's risk.
The respondent objected that the decree as drawn carried the erroneous judgment date of 20 December 2001. The Judge acknowledged the objection but held that the erroneously dated decree was not the decree to be included in the record of appeal, and that if the applicant's advocate included it nonetheless, he would do so at his client's risk. This is case-management guidance rather than a substantive rule.
Legal principles established
#- In extension-of-time applications, mistakes of counsel must not in normal circumstances be visited upon the litigant; mistakes by courts and counsel will occur and may be corrected.
- Delay that is not inordinate must not be allowed to deprive a litigant of an undoubted right of appeal, particularly where the intended appeal is not frivolous.
- The discretion to extend time under rule 4 is wide - described as 'almost unfettered' - and may be exercised subject to conditions, including payment of the costs of the application, default in which the application stands dismissed.
Court orders
#- 1.Extension of time granted: the applicant to lodge its fresh notice of appeal within seven (7) days of the ruling.
- 2.The applicant to lodge the record of appeal within thirty (30) days of the date of lodgment of the fresh notice of appeal.
- 3.Condition: the applicant to pay the respondent Shs.8,000/= as costs of the application within the next thirty (30) days.
- 4.Default clause: if the condition is not fulfilled, the application stands dismissed with costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya (referred to in the judgment as 'the superior court')
- Jurisdiction invoked
- Rule 4 of the Rules of this Court (Court of Appeal Rules), heard by a single Judge of Appeal
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.
I order therefore that the applicant may lodge its fresh notice of appeal within the next seven days and the record of appeal within 30 days of the date of lodgment of the notice of appeal.
If the condition that I have set out above is not fulfilled this application will stand dismissed with costs.
It is a matter of notoriety that mistakes will be made by court as well as counsel and corrected. Mistakes of counsel in normal circumstances ought not to be laid at the door of the litigant.
The time span between putting matters in order and the date of this application is therefore really a period of 28 days and the delay is not so inordinate as to deprive the applicant of its undoubted right of appeal.
It raises an important issue of liability, if any, of an insurer to pay for damages for injuries suffered by a passenger in a private vehicle as opposed to one in a passenger-service vehicle.
I am minded to exercise my almost unfettered discretion to extend the time as sought but I will do so on the condition that the applicant pays to the respondent a sum of Shs.8,000/= as costs of this application within the next 30 days.
Issues in the judgment
#The opening paragraph dates the superior court's judgment and decree '19th December, 2002', while the body of the ruling states, and the parties accept as common ground, that the judgment was delivered on 19th December, 2001 - an apparent typographical error in the opening paragraph.
The certified copy of the judgment in the record bears the date 20th December, 2001, whereas the court records it as common ground that the judgment was actually delivered on 19th December, 2001; the discrepancy was the root of the application and was resolved by consent.
The respondent is never named in the judgment; the respondent's counsel is referred to only as 'Mr. Murimi', so the party title cannot be completed from the judgment itself.
No case or appeal number is given anywhere in the judgment for this rule 4 application.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Concord Insurance Company Limited v Susan Nyambura Hinga [2003] KECA 108 (KLR)", Case Analysis (2003). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2003/108/eng@2003-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.