Attorney General v Law Society of Kenya & 4 others (Civil Application 327 of 2018) [2018] KECA 51 (KLR)
The bottom line
#Kenya's Court of Appeal let the Attorney-General's late-served appeal proceed, ruling that justice matters more than strict procedural discipline.
What this practically means
#Executive summary
#Key legal issues
#Whether the nearly four-month delay in serving the notice of appeal, caused by an inadvertent clerical omission, should be excused under Rule 4
Yes. The delay, though significant, was not inordinate; the explanation of documents left unserved in a clerk's drawer was accepted as plausible and the respondents suffered no demonstrated real prejudice.
The judge found the delay significant but not outlandish. The applicant's explanation - that advance copies were left in the folder of a clerk who later fell ill and is in rehabilitation - was accepted on the benefit of doubt despite the absence of an affidavit from the clerk or medical documents. The court declined to find deliberate inaction, noting law offices can have gaps in routine clerical tasks, while warning that busy lawyers who fail to follow up service do so at their own peril.
Whether the intended appeal's arguability and the absence of prejudice to respondents favoured extension
The court declined to determine arguability, but noted the intended appeal facially raises serious constitutional questions; no evidence of real prejudice beyond claims of ambush was presented, and other appeals were already filed by the 2nd and 4th respondents.
The judge held it unnecessary to assess arguability, which is for a full bench, but observed the appeal involves serious questions of constitutional interpretation concerning the Court's representation on the JSC. No evidence of real prejudice was adduced beyond the complaint of ambush. Although continued non-representation on the JSC was a cause for concern, substantive justice prevailed, especially as blocking the applicant would not end the matter given the two existing appeals.
Legal principles established
#- The Salat principles govern extension-of-time applications, but they are indicative, not exhaustive or doctrinal, and must not fetter the judge's discretion whose only aim is to do justice between the parties.
- Extension of time is an equitable remedy available only to a deserving party; the applicant bears the burden of laying a basis to the satisfaction of the court, including a reasonable explanation for the delay.
- A single judge exercising discretion under Rule 4 must do so judicially and judiciously, not on the basis of caprice, whim or personal idiosyncrasy.
- Where the intended appeal raises serious questions of constitutional interpretation, a court should be hesitant to lock out an applicant on grounds of dilatory conduct, so that parties be heard on the merits.
Court orders
#- 1.Time enlarged for service of the notice of appeal
- 2.The notice of appeal filed on 16th July 2018 deemed duly filed and served
- 3.Time extended for institution of the appeal; record of appeal to be filed within fourteen (14) days and served within seven (7) days thereafter
- 4.Costs shall be in the intended appeal
- On appeal from
- High Court of Kenya at Nairobi
- Nairobi Constitutional Petition No. 106 of 2018 (consolidated with Constitutional Petition No. 119 of 2018)
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules, read with the Court's jurisdictional statute (Appellate Jurisdiction Act) and the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Attorney General v Law Society of Kenya & 4 others (Civil Application 327 of 2018) [2018] KECA 51 (KLR)", Case Analysis (2018). Nairobi Civil Application (as derived from the motion dated 8th November 2018; appeal against Nairobi Constitutional Petition No. 106 of 2018 consolidated with No. 119 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/51/eng@2018-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.