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Court of AppealDismissedCivil Application (motion dated May 6, 2022)· [2023] KECA 918 (KLR)

Africa Blooms Limited v Gadson Gatari (suing As The Legal Representative of The Estate of Samuel Karuga Gatari - Deceased)

Court of Appeal of Kenya
28 July 2023
FSF. Sichale
2,048 words in judgment
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The bottom line

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The Court of Appeal refused to revive Africa Blooms' dismissed case, ruling that clients—not their lawyers—must actively follow up on their litigation.

What this practically means

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Executive summary

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This was an application before a Single Judge of the Court of Appeal at Nakuru (Sichale JA) by Africa Blooms Limited seeking extension of time under Rule 56(4) of the Court of Appeal Rules within which to apply for reinstatement of an application dated August 2, 2019 seeking to maintain the status quo over suit land pending an intended appeal from the dismissal of its injunction application in Nakuru ELC Case No 9 of 2019. The 2019 application had been dismissed for want of prosecution on February 3, 2021 when the applicant's then advocates failed to attend. A full bench (Sichale, Achode & Korir JJA) had on December 8, 2022 directed that the extension-of-time prayer be placed before a Single Judge before the other prayers (injunction and stay) could be considered. The Single Judge applied the settled Rule 4 principles from Fakir Mohamed v Joseph Mugambi on period and reason for delay, chances of success and prejudice. Holding the delay of over one year inordinate, and finding the explanation that the applicant only learned of the dismissal in April 2022 implausible, the court held that a case belongs to the client, who must follow up its progress, and that under Rule 56(4) the applicant failed to demonstrate sufficient cause for non-attendance. Prayer 5 was declined with no order as to costs. The other prayers in the motion were not determined. This was an interlocutory single-judge ruling, not a binding full-bench appellate disposition.

Key legal issues

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01

Whether the delay of over one year in seeking extension of time was reasonable

Holding

The delay of more than one year was inordinate and the reasons given were neither reasonable nor plausible.

Reasoning

The application dismissed for non-attendance was dismissed on February 3, 2021, yet the motion for extension of time was filed on May 6, 2022. The applicant's claim that it only became aware of the dismissal in April 2022 was deemed implausible and showed lack of seriousness. The applicant gave no account of when it last communicated with its former advocates.

p. 3
02

Whether mistake or negligence of former advocates excuses the litigant

Holding

Although mistake of counsel should not ordinarily be visited on an innocent litigant, the client remains responsible for following up its case; the excuse was rejected here.

Reasoning

The court acknowledged the trite principle that mistakes of counsel should not be visited on innocent litigants, but held that the applicant 'sat pretty easy' for over a year without checking the status of its case. Citing Waki JA and Kimaru J, the court held a litigant cannot blame counsel where it was equally indolent, and its remedy lies in an action for professional negligence.

p. 3
03

Whether the chances of the appeal succeeding could be assessed

Holding

The Single Judge could not determine the merits of the intended appeal, and under Rule 56(4) the applicant still had to show sufficient cause for non-attendance, which was not demonstrated.

Reasoning

The court noted it was not in a position, sitting as a Single Judge, to determine whether the appeal would succeed. It distinguished extension of time to file an appeal from extension under Rule 56(4) for reinstatement of a dismissed application, the latter requiring demonstration of sufficient cause preventing attendance.

p. 4

Legal principles established

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  • A case belongs to the client and not their advocates; litigants have a duty to follow up the status of their cases, and blaming former advocates without explaining the last communication with them is not a plausible reason for delay.
  • Where an application for reinstatement of a dismissed application is sought under Rule 56(4) of the Court of Appeal Rules, the applicant must demonstrate sufficient cause that prevented attendance.
  • While the court's discretion under Rule 4 is wide and unfettered, it must be exercised judiciously, guided by relevant factors including period and reason for delay, chances of success, and prejudice to the respondent.

Court orders

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  1. 1.Prayer 5 of the applicant's motion dated May 6, 2022 (extension of time under Rule 56(4) to apply for reinstatement of the dismissed application) is declined
  2. 2.No order as to costs
On appeal from
Environment and Land Court, Nakuru
Nakuru ELC Case No 9 of 2019
Jurisdiction invoked
Sections 3A & 3B of the Appellate Jurisdiction Act; Rules 4, 5(2)(b), 42, 43, 47, 56(3), 56(4) & 57(2) of the Court of Appeal Rules; Articles 50(1) & 159(2)(d) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Africa Blooms Limited v Gadson Gatari (suing As The Legal Representative of The Estate of Samuel Karuga Gatari - Deceased)", Case Analysis (2023). Civil Application (motion dated May 6, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/918/eng@2023-07-28

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