Kibunja v Kariuki & another (Civil Application 308 of 2019) [2021] KECA 354 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a late-served appeal notice because the delay was the advocate's clerk's fault, not the client's.
What this practically means
#Executive summary
#Key legal issues
#Inordinate delay in service of notice of appeal
A delay of one month and nine days was not inordinate, being far shorter than delays in the decided cases where relief was refused
The notice of appeal was timeously filed on 17th October 2019 but served on 26th November 2019, one month and nine days late. Comparing this with a 20-month delay in George Mwende Muthoni and a six-month delay in Aviation Cargo Support, the court found the delay much less and therefore not inordinate, though this finding alone was not determinative.
Explanation for delay - advocate's inadvertence
Inadvertence by the advocate's clerk is an excusable reason; the client who has no policing power over the advocate should not be punished for it
The process server swore an affidavit accepting responsibility for the inadvertence. Relying on Owino Ger, the court held that where non-compliance stems from the advocate's fault, the client is not to be pinned with it, since the applicant trusted the advocate and had no policing power over the discharge of those functions.
Article 159(2)(d) and procedural technicalities
Shutting out an applicant whose default is mere inadvertence would amount to rendering justice on technicalities; Article 159(2)(d) is however not a panacea for all procedural ills
The court weighed the constitutional dictate that justice be administered without undue regard to procedural technicalities against the respondents' objection. Following the IEBC line of cases, it noted the jurisdiction under Article 159 is unfettered where technicalities impede justice, but is not a panacea, and found that refusing relief here would be deciding on a technicality.
Right to be heard and prejudice to respondent
The constitutionally entrenched right to be heard outweighs the respondents' claimed prejudice, which was minimal
The court held the right to a hearing is constitutionally entrenched and the cornerstone of the rule of law, but must be weighed against prejudice to the opposite party. The respondents claimed no personal benefit from the estate and that they were being dragged into a matter between their late father and the applicant; the applicant had already filed a record of appeal, favouring a hearing on the merits.
Legal principles established
#- Extension of time under Rule 4 is discretionary and governed by the factors of length of delay, reason for delay, arguability of the appeal, prejudice to the respondent and public interest
- A court will generally not visit an advocate's mistake or inadvertence on the client where non-compliance with the rules is due to the advocate's fault
- A single arguable ground suffices to justify extension of time
Court orders
#- 1.The applicant is granted leave to serve the notice of appeal on the respondents out of time
- 2.The time within which to comply is extended up to 26th November, 2019, the date on which the notice of appeal was served on the respondents
- 3.Costs of the application to abide the outcome of the appeal already filed
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Articles 20(3)(a),(b), 48, 50, 159(2)(d) and 259(1) of the Constitution; sections 3A and 3B of the Appellate Jurisdiction Act; Rules 4, 75 and 77 of the Court of Appeal Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ruriga v Njuki (Civil Application 100 of 2020) [2023] KECA 3 (KLR)[2023] KECA 3 (KLR)17 Jan 2023followed
- Joseph Mundia Njoroge & 14 others v John Ngari Njoroge & 1 other[2023] KECA 1 (KLR)17 Jan 2023applied
Cite this brief
#Cite this brief
Caselaw, "Kibunja v Kariuki & another (Civil Application 308 of 2019) [2021] KECA 354 (KLR)", Case Analysis (2021). Notice of Motion dated 11th November, 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/354/eng@2021-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.