[1989] KECA 12 (KLR)
The court found that the delay in filing the record of appeal was not attributable to the applicant personally but to the failure of his previous advocate. The applicant had demonstrated a consistent intention to appeal and had taken steps to rectify the situation upon discovering the omission. Citing established...
Source-derived case information.
- Citation
- [1989] KECA 12 (KLR)
- Parties
- Applicant: Chumo; Respondent: Koech
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Application 135 of 1989
- Procedural Posture
- Civil Application / Ruling on Application for Extension of Time to File Record of Appeal
- Outcome
- application allowed
- Judges
- JM Gachuhi
- Legal Topics
- Extension of Time, Appeal Procedure, Mistake of Counsel
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Chumo
Applicant
Koech
Respondent
Procedural Posture
Civil Application / Ruling on Application for Extension of Time to File Record of Appeal
Legal Issues
- 1 Whether the applicant should be granted an extension of time to file the record of appeal after a delay of over two years.
- 2 Whether the delay in filing the appeal was excusable due to the mistake of the applicant's previous counsel.
- 3 Whether a litigant should be penalized for the mistakes of their advocate.
Ratio Decidendi
The court found that the delay in filing the record of appeal was not attributable to the applicant personally but to the failure of his previous advocate. The applicant had demonstrated a consistent intention to appeal and had taken steps to rectify the situation upon discovering the omission. Citing established authority, the court held that a litigant should not be penalized for the mistake of counsel. The delay, though over two years, was not considered inordinate in the circumstances. The court exercised its discretion to allow the application for extension of time, enabling the applicant to file the record of appeal within 30 days.
Court Disposition
application allowed
Orders
- The applicant shall file the record of appeal within 30 days from the date of this ruling.
- The costs of this application will be costs in the appeal.
Full Case Text
Judgment text and source record
21 paragraphs
IN THE COURT OF APPEAL
AT NAKURU
( Coram: Gachuhi JA)
CIVIL APPLICATION NO 135 OF 1989
CHUMO.........................................APPLICANT
VERSUS
KOECH............................................RESPONDENT
RULING
(Application for extension of time in an intended appeal from a Judgment, decree of the High Court of Kenya at Nakuru (Masime, J) dated 24th April, 1987
in HCC No 228 of 1986)
September 26, 1989, Gachuhi JA delivered the following Ruling.
This is an application under rule 5 of the Court of Appeal Rules for the extension of time within which to file the record of appeal.
Judgement was entered on 27/4/87. Notice of appeal was filed on 8/5/87 and served on the respondent. The applicant claims that he instructed his advocate to file the appeal and kept on enquiring whether the appeal had been filed until he discovered that it had not. He then withdrew the instruction from him and instructed Mr Mutakha who had filed his application. Mr Mutakha states the necessary proceeding of the Court in order to file the record of appeal.
Mr Maraga opposes the application and states that there has been intervening court proceedings and the applicant must have been aware all along that the appeal had not been filed. When he was arrested on execution for costs, he asked for time to pay.
This may be so, because what goes on between the advocate and his client is not known outside that office. The facts remains as deponed in the applicant’s affidavit that he has always been intending to appeal and the delay had been caused by his advocate. On the other hand it was open to the respondent to apply to strike out the notice of appeal. This was not done.
This Court has to consider the allegation for the delay and whether the same was due to his advocate. The applicant is incapable of filing the appeal himself and that is why he instructed an advocate to do so. The advocate has failed to do so. The delay is now slightly over 2 years which is not inordinate. Should the applicant be penalized for the mistake of his counsel? In Pithon Waweru Maina v Thuku MugiriaCA 27/82 (unreported) and in Haji Ahmed Sheikh t/a Hasa Haulier Ltd v Highway Carriers Ltd, CA 46/86 (unreported) and in Shah V Mbogo and Another [1967] EA 116 this Court held that a litigant should not be penalized for the mistake of his counsel.
Under rule 4, the Court has unfettered discretion to enlarge time but it has to be exercised judicially. From the submission before me, the delay in filing the record of the appeal, was not caused by the applicant himself but by his previous counsel. Under the circumstances, I exercise my discretion and allow this application. The applicant will file the record of appeal with 30 days from the date thereof.
The costs of this application will be costs in the appeal.
Dated and Delivered at Nakuru this 26th day of September, 1989
J.M GACHUHI
JUDGE OF APPEAL