Beatrice Wambui Kigondu & 4 others v Beatrice Muthoni Thumbi [2005] KECA 37 (KLR)

The court segmented the delay. Ten days from the striking out of the appeal to the first application was not inordinate. The roughly four weeks between the withdrawal of that application and the filing of the second was a long time within which to perform a fairly simple task, although instructions had to be taken and a rectification application was filed in the High Court on 26th May 2005, with the order amended and the certificate re-rectified on 6th June 2005. The judge could not see why that rectification had not been sought much sooner after the striking out.

The applicants attributed the defective documents to clerical errors by the court registry. The respondent's advocate maintained that his own firm had already moved the High Court by summons to rectify the grant, with the applicants' advocate consenting, before Kubo J who made the necessary orders on 27th October 2004, and that the errors resulted from the applicants' advocate's failure to send drafts for approval as mandated. On a discretionary remedy, the applicants were said not to have come with clean hands; the judge found the contention had considerable force and undertook the balancing exercise between advocate fault and shielding the clients.

Counsel for the respondent emphasised the prejudice that would follow if the extension were granted: the deceased died thirteen years before; the ruling under attack was delivered some four years earlier; and the respondent, having won in the High Court and on the striking out of the appeal, would remain in agonizing uncertainty for another five or six years if the extension were granted, while the applicants sought to disturb the status quo under which she had lived in the matrimonial home throughout. The judge treated this as a weighty factor in the overall discretionary balance leading to dismissal.

Counsel for the respondent contended the intended appeal was hopelessly unarguable; the applicants' advocate advanced counter-arguments. The judge declined to make a negative finding on arguability but expressly cautioned that the presence of arguable issues does not decide an extension application. The Rule 4 discretion required an overall judicial weighing of the delay, its explanation, the advocate's errors, the prejudice to the respondent and the interests of justice, in which arguability was only one factor and not the determinant of the outcome.

The judge acknowledged awareness that disputes over succession to family land are always sensitive, a factor that might otherwise counsel indulgence. He nevertheless rejected any suggestion that such sensitivity creates an entitlement to extension: each application must still be measured against the length of the delay, its explanation, the conduct of the parties and their advocates, and the prejudice to the opposing party, with extension remaining a discretionary remedy to be exercised judicially on the particular facts rather than as a matter of course in family land cases.