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Court of AppealPartially AllowedCivil Application No. Nai 366 of 2009· [2015] KECA 907 (KLR)

Catherine Njuguini Kanya & 2 others v Commercial Bank of Africa Limited

Court of Appeal of Kenya
6 March 2015
RNR.N. NambuyeSKS. Gatembu KairuPhilomena Mbete MwiluP.M. Mwilu
6,628 words in judgment
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The bottom line

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Kenya's Court of Appeal let three litigants revive their appeal after their lawyer's delay, ruling a client shouldn't pay for an advocate's mistakes.

What this practically means

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Executive summary

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This was a reference under rule 55 of the Court of Appeal Rules to a full bench from the decision of Onyango Otieno, JA (single judge) dismissing the applicants' rule 4 application for extension of time to file and serve a record of appeal out of time against the ruling of Kimaru, J in H.C.C.C. No. 531 of 2002, which had dismissed their application to review the judgment of Ransley, J in consolidated employment-benefits suits. The single judge had excused the delay attributable to the first advocates, Khaminwa & Khaminwa, but withheld relief on three grounds: the unexplained 50-day delay from 2nd November to 22nd December 2009 while the file was with the incoming advocates, Oduk & Co; the absence of a draft memorandum of appeal; and prejudice to the respondent from execution. Nambuye, JA, writing the leading ruling with Mwilu, JA concurring fully, found the single judge fell into error: the litigants played no role in the second delay, which was the second firm's inadventure that should not have been visited on them; absence of a draft memorandum was not a mandatory bar under the Leo Sila Mutiso criteria; and execution of the judgment was not a major rule 4 consideration. Gatembu, JA dissented on reasoning, holding the 50-day delay was wholly unexplained and the single judge's discretion should stand, but as he was alone, the orders proposed by Nambuye, JA prevailed. The court set aside the dismissal of 2nd March 2012, allowed the application on condition that the record of appeal be lodged and served within 30 days, failing which the extension lapses, with costs of the application to the respondent payable personally by Oduk & Company advocates.

Key legal issues

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01

Principles governing extension of time under rule 4 of the Court of Appeal Rules

Holding

The court exercises a judicial discretion guided by the length of the delay, its explanation, prejudice, the merits, public administration, compliance with time limits and the parties' resources; the list is not exhaustive.

Reasoning

The court adopted the settled principles in Major Joseph Mweteri Igweta and Leo Sila Mutiso, holding that the discretion is unfettered but must be exercised judicially, and that the listed factors are not a passport to ignoring time limits, nor are they exhaustive of the considerations a court may take into account.

p. 2
02

Whether the litigants should bear the blame for the second advocates' unexplained delay

Holding

No; where the first advocates' similar inadvertence was excused, the second advocates' inadvertence should not have been visited on the innocent litigants absent strong grounds.

Reasoning

Nambuye, JA found that the applicants, as litigants, had no role in the second delay: the record passed directly from Khaminwa & Khaminwa Advocates to Oduk & Company Advocates, and the 50-day delay was the incoming advocates' inadventure. Having excused the first firm's delay, the single judge could only refuse to excuse the second firm's delay on strong grounds, none of which appeared on the record.

p. 6
03

Whether absence of a draft memorandum of appeal was a bar to extension of time

Holding

No; under Leo Sila Mutiso the merits of the intended appeal are only a possibility and not a mandatory requirement, so failure to annex draft grounds should not have tilted the scales against the innocent litigants.

Reasoning

The court held that the arguability factor in the celebrated Mutiso criteria is a mere possibility, not a mandatory ingredient, and that the single judge erred in placing heavy weight on the absence of a draft memorandum of appeal, especially where the prejudice to the respondent could be compensated by costs.

p. 6
04

Whether execution of the judgment is a major consideration against extension of time

Holding

Execution of the judgment is not one of the major considerations under rule 4; its implications are best dealt with at the hearing of the intended appeal.

Reasoning

The court held that although the rule 4 factors are not exhaustive and importance of compliance falls on the advocate on record, the fact of a fully or partly executed judgment is not a weighty ground for withholding extension of time and can be addressed when the appeal is argued.

p. 7

Legal principles established

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  • The factors in Leo Sila Mutiso governing extension of time under rule 4 are not exhaustive; the court's discretion is unfettered and may take into account other relevant factors including the conduct of advocates and the importance of compliance.
  • An advocate's mistakes on time limits should not ordinarily be visited on the client; where a litigant's default is due to the advocate's mistake and no injustice is occasioned to the other party, the court should consider the applicant's case with broad understanding.
  • On a reference, the full court is not sitting on appeal over the single judge; it may interfere only where the single judge took into account an irrelevant factor, failed to take into account a relevant factor, applied a wrong principle, misapprehended the evidence, or reached a plainly wrong decision.

Court orders

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  1. 1.Set aside the dismissal order of 2nd March 2012 made by the single judge
  2. 2.Allowed the applicants' notice of motion dated 18th December 2009 and lodged on 22nd December 2009
  3. 3.Extended time on condition that the record of appeal is lodged and served within thirty (30) days from the date of reading of the ruling; in default the extension order lapses
  4. 4.Costs of the application to the respondent, to be paid personally by the firm of Oduk & Company advocates
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 531 of 2002
Jurisdiction invoked
Rule 4 and rule 42(1) of the Court of Appeal Rules; reference to full court under rule 55 of the Court of Appeal Rules from the decision of a single judge (Onyango Otieno, JA) of 2nd March 2012

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (12)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Catherine Njuguini Kanya & 2 others v Commercial Bank of Africa Limited", Case Analysis (2015). Civil Application No. Nai 366 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/907/eng@2015-03-06

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