Joseph Kibe Mungai(as Guardian ad litem of Ramesh Liladh Shah) v John Njau Njuguna & another (as the legal representative of the Estate of the late Reuben Kangara Kirika) [2008] KECA 248 (KLR)
The bottom line
#The Court of Appeal refused to forgive a 169-day filing delay caused by an advocate's mistakes, showing clients bear the cost of their lawyer's carelessness.
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 Court should extend time within which to file the Record of Appeal where the appeal was instituted 169 days out of time
- 2.Whether the applicant could rely on the proviso to rule 81(1) of the Court of Appeal Rules, the application for copies of proceedings having been made outside 30 days and not copied to the respondent
- 3.Whether the Certificate of Delay issued by the Deputy Registrar could reduce the excusable delay
- 4.Whether the mistakes and delay of the applicant's counsel warranted an exercise of discretion in the applicant's favour
Key legal issues
#Exercise of the rule 4 discretion to extend time
The application was dismissed because counsel's multiple errors produced an inordinate, unexplained delay of 169 days which could not be excused in the exercise of the judicial discretion.
The single Judge applied the settled four-factor test: length of delay, reason for delay, arguability of the appeal, and prejudice. Counsel miscalculated the start date, miscalculated the expiry date, filed outside the 60-day period, and then delayed a further 28 days after the appeal was struck out without explanation. The Judge distinguished the case from Njuguna v Magichu (a land matter) noting this was a commercial partnership dispute, and found the errors showed a high degree of lack of attention to the Rules.
Availability of the proviso to rule 81(1) and the Certificate of Delay
The applicant could not rely on the proviso because the application for copies of proceedings was made on 27th May 2002, about three months outside the 30-day window, and was not copied to the respondent as required by sub-rule (2).
The proviso excludes from computation only time certified as required for preparation and delivery of copies, and only where the bespeaking letter was made within 30 days and in writing with a copy sent to the respondent. The 27th May 2002 letter made no reference to the alleged 18th January 2002 letter and was not copied to the respondent; the evidence of service was unconvincing. The Certificate of Delay could reduce the delay to about 7 days, but only if the proviso could be relied on, which it could not.
Whether absence of costs against the respondent in the struck-out appeal was significant
The fact that the respondent had not noticed the defect and had not been awarded costs in the struck-out appeal was not a significant factor.
Counsel for the applicant argued it was significant that the respondent had not moved to strike out the appeal and had received no costs. The Judge held this carried no weight in deciding whether to grant the extension, since the discretion turned on the delay, its explanation, and the other settled factors.
Legal principles established
#- The discretion under rule 4 to extend time is unfettered but must be exercised judicially, not arbitrarily, capriciously or on sentiment, taking into account the length of delay, the reason for the delay, the chances of the appeal succeeding, and the prejudice to the respondent.
- An appellant cannot rely on the proviso to rule 81(1) unless the application for copies of the proceedings was made in writing within 30 days of the decision appealed against and a copy was sent to the respondent.
- The consequences of careless and sloppy handling of legal business by advocates fall on their clients' shoulders.
Court orders
#- 1.Civil Application No. NAI 209 of 2007 by Notice of Motion dated 10th August 2007 dismissed
- 2.Respondent's costs of the application to be paid by the applicant, to be taxed by the Deputy Registrar of the Court of Appeal if not agreed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (application for extension of time, decided by a single Judge of Appeal)
Relief refused
#Extension of time within which to file the Record of Appeal
So many mistakes by counsel leading to a 169-day delay that the judicial discretion could not be exercised in the applicant's favour
Leave to file and serve the Record of Appeal within 21 and 7 days respectively
Follows automatically from the dismissal of the extension application
Reliance on the Certificate of Delay and the proviso to rule 81(1)
The bespeaking letter of 27th May 2002 was outside the 30-day window and was not copied to the respondent as required by rule 81(2)
Costs
The respondent's costs of this application to be paid by the applicant to the respondent, to be taxed by the Deputy Registrar of the Court of Appeal if not agreed.
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.
Whilst the discretion under rule 4 of the Rules is unfettered, it must, like all discretion, be exercised judicially and not arbitrarily or capriciously; nor should it be exercised on the basis of sentiment or sympathy.
It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are: first, the length of the delay; secondly, the reason for the delay; thirdly, (possibly), the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted.
Legal business can no longer be handled in such a sloppy and careless manner. Some clients must learn at their cost that the consequences of careless and leisurely approach to work by the advocates must fall on their shoulders
Justice must look both ways as the rules of procedure are meant to regulate administration of justice and they are not meant to assist the indolent.
After due consideration of all of the above, I hereby order that Civil Application No. NAI 209 of 2007 by Notice of Motion dated 10th August 2007 be and is hereby dismissed.
Issues in the judgment
#Internal inconsistency in the period between the strike-out of the appeal and the filing of this application: the judgment first describes the application as lodged 'about 25 days' after the strike-out and later as 28 days after the strike-out
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Kibe Mungai(as Guardian ad litem of Ramesh Liladh Shah) v John Njau Njuguna & another (as the legal representative of the Estate of the late Reuben Kangara Kirika) [2008] KECA 248 (KLR)", Case Analysis (2008). Civil Application No. NAI 209 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/248/eng@2008-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.