Mwangi & Another v Machira T/A Machira & Co Advocates
The bottom line
#Kenya's Court of Appeal revived a libel appeal, ruling that a litigant should not be punished twice for a lawyer's procedural mistake.
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 delay of about two weeks in filing the application for extension of time was inordinate
- 2.Whether the earlier 46-day delay that led to the striking out of the original appeal should be taken into account in considering the fresh extension application
- 3.Whether the intended appeal is meritorious enough to warrant extension of time
- 4.Whether the applicants would suffer or cause prejudice if extension is granted
Key legal issues
#Whether the two-week delay in filing the extension application was inordinate
A period of about two weeks to mount such an application is not inordinate
The appeal was struck out on 11 April 2003, the Easter vacation had begun, and discounting the weekend the application was lodged some two weeks later. The court held this was a reasonable time and refused to adopt counsel's suggested two-to-three-day standard, noting filings must be properly considered and record bound.
Whether prior delay leading to striking out should count against a fresh extension application
No; the applicants were already punished by the striking out with costs, and no authority was cited requiring the earlier delay to be counted
Relying on Kuwinda Rurinja, the court held that once the appeal was struck out for counsel's mistake, the correct inquiry is whether there was inordinate delay from the filing of the extension application itself, not a re-litigation of the earlier 46-day delay.
Merit of the intended appeal
The intended appeal, concerning a large libel damages award, is neither unmeritorious nor frivolous
The appeal hinges on a substantial damages award for libel; large libel awards have been the subject of public discussion in Kenya, and the court considered it right that the complaint be examined. Refusal would disentitle the applicants from arguing the appeal on a purely technical basis.
Prejudice to the respondent
The respondent would suffer no prejudice; he would in any event obtain damages plus 12% interest if he ultimately succeeds
The court weighed the respondent's interests, noting he is not a poor man and would benefit from knowing where he stands, whereas the greater concern is defeating a litigant on a technical defect that can be cured.
Legal principles established
#- A copy of the judgment required under rule 85(1)(g) for a record of appeal need not be certified
- Where an appeal has already been struck out for delay, the court assessing a subsequent extension application should consider delay from the date of that application, not the earlier delay for which the applicant was already penalised
- A litigant should not be punished for a counsel's mistaken belief that a certified copy of the judgment is needed to mount an appeal
Court orders
#- 1.Applicants to file a fresh notice of appeal within the next seven days
- 2.Applicants to file a record of appeal within 30 days of lodgment of the notice of appeal
- 3.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court at Nairobi
- HCCC No 1709 of 1996
- Jurisdiction invoked
- Inherent/appellate jurisdiction of the Court of Appeal to extend time for filing notice of appeal and record of appeal (Appellate Jurisdiction Act regime; rules 81(1) and 85(1)(g) of the Court of Appeal Rules discussed)
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 grant this application and order that the applicants do file a fresh notice of appeal within the next seven days and a record of appeal within 30 days of lodgment of the notice of appeal. I make no order as to costs as Mr Machira appeared in person.
There is no requirement whatsoever that a copy thereof (that is judgment) required by rule 85(1)(g) to be included in the record of appeal must be certified
since the applicant had already been penalized for its counsel’s mistake by the entire appeal being struck out what the learned single judge ought to have done was to consider whether there was inordinate delay from the time the application for extension of time was filed
But I am more concerned about defeat of a litigant on purely technical basis when the technical defect can be put right.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwangi & Another v Machira T/A Machira & Co Advocates", Case Analysis (2003). Civil Application No NAI 110 of 2003 (59-2003 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2003/195/eng@2003-06-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.