Musanda v Asset Recovery Agency & 3 others (Civil Application E028 of 2021) [2022] KECA 135 (KLR)
The bottom line
#Kenya's Court of Appeal gave a woman whose lawyer went silent more time to file her appeal, confirming clients aren't punished for their advocate's inaction.
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 1st respondent's objection on the competence of the notice of appeal and record of appeal, raised only in submissions, can defeat the application
- 2.Whether the length of the delay was inordinate
- 3.Whether the reason for the delay, being the inaction of the applicant's former advocate, was sufficient and excusable
- 4.Whether the intended appeal is possibly arguable
- 5.Whether any prejudice would be suffered by the respondents if the extension is granted
Key legal issues
#Effect of a respondent's challenge to the validity of a notice of appeal raised only in submissions
Where the notice of appeal and memorandum of appeal are on the record, the court will not ignore them; a respondent must move formally to strike them out before the documents can be disregarded.
The 1st respondent complained that the served copies of the notice of appeal bore no stamp or seal of the Registrar. The single judge held that the documents being on the record, they provide the foundation for the application, and any challenge to them should have been by formal application, allowing the applicant an opportunity to respond. A complaint raised only in submissions cannot carry the day because submissions are not pleadings.
Whether the delay of about two months and five days beyond the time for filing the record of appeal was inordinate and sufficiently explained
The delay was not inordinate and was excusably explained by the former advocate's inaction, for which the client is not to be blamed.
The record of appeal should have been filed by about 28th/29th November 2020 and the application was filed on 2nd February 2021. Compared with the twenty-month delay in George Mwende Muthoni, this was much shorter. Blame was laid on the advocate on record who filed the notice of appeal and notice of appointment but failed to file the record within sixty days; the applicant stated the advocate left without notice. The court found it just not to pin the advocate's inaction on the applicant.
Whether the intended appeal was possibly arguable and whether prejudice would ensue
The grounds in the memorandum of appeal satisfied the threshold for arguability, and no prejudice to the respondent was demonstrated.
Adopting the standard that an arguable ground need not succeed but must be bona fide and warrant the opposite party's response and the court's interrogation, the judge found the memorandum of appeal met that threshold. On prejudice, the 1st respondent adduced nothing to show prejudice would be suffered, so none was found to be occasioned by granting the extension.
The right of access to the appellate process as a factor in exercising the Rule 4 discretion
The constitutionally entrenched right to be heard supported exercising the discretion in the applicant's favour once she was found blameless for the advocate's default.
Relying on Richard Nchapi Leiyagu, Mbaki & Others v Macharia and the Tanzanian decision in Abbas Sherally, the court emphasised that the right to a hearing is constitutionally entrenched and the cornerstone of the rule of law. Having found the applicant not to blame for the advocate's failure, the balance of the Rule 4 factors favoured granting the extension.
Legal principles established
#- So long as the notice of appeal and memorandum of appeal are on the record, a respondent who complains about their validity must formally apply to strike them out rather than rely on submissions.
- Submissions are not pleadings and cannot substitute for a formal application attacking the validity of a process on the record.
- An advocate's inaction will not be pinned on an innocent client so as to defeat an extension of time where the delay is explained and not inordinate.
- An arguable ground of appeal for purposes of extension of time need not necessarily succeed; it suffices that it is bona fide and warrants the court's interrogation.
Court orders
#- 1.The applicant has thirty (30) days from the date of the delivery of the ruling to file and serve the record of appeal
- 2.Costs of the application to abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules, 2010, invoked under Articles 40 and 48 of the Constitution and sections 3A and 3B of the Appellate Jurisdiction Act
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.
The applicant, has thirty (30) days from the date of the delivery of the ruling to file and serve the record of appeal.
Costs of the application to abide the outcome of the appeal.
It is now trite that submissions are not pleadings. I therefore decline to fault the applicant’s application on those grounds.
I find the delay herein suficiently explained. It is also not inordinate and therefore excusable.
an arguable ground of appeal is not one that must necessarily succeed but one that is bona fide and would not only call for a response from the opposite party but also warrant the court’s interrogation.
In the result, I find merit in the applicant’s application. It is accordingly allowed.
Issues in the judgment
#The judgment states inconsistently that the impugned judgment was delivered on 21st September, 2020 and on 20th September, 2020.
The judgment describes the decision under Rule 4 as a single-judge determination that does not bind the full Court; it is not an appellate judgment of a full bench.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Musanda v Asset Recovery Agency & 3 others (Civil Application E028 of 2021) [2022] KECA 135 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/135/eng@2022-02-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.