When delay in lodging appeal was inexcusable

North Kisii Central Farmers Co. Ltd-v-Attorney General (Civil Application No. NAI. 186 of 1993 (unreported)

 

Court of Appeal: Tunoi, J,A (in Chambers); 30^th September, 1993

Advocate for Applicant: Mr. Oira

Advocate for the Respondent: Not disclosed

 

Authorities Cited

1. The public Trustee of Kenya-v-Francis Muchina Kamau (Civil Application No. Nai. 26 of 1985 (unreported)-Distinguished
2. John Kuria-v-Kalen Wahito (Civil Application no. Nai. 19 of 1983 (unreported)-Distinguished

 

Issue: Whether inordinate delay in lodging appeal could be excused on the ground that it was allegedly caused by negligence of an advocate?

 

The application was for leave to lodge notice and records of appeal out of time under rules 4, 9, 42 and 76 of the Court of Appeal Rules.

 

The judgment appealed against had been delivered two years before. It was argued in support of the application that the delay in instituting the appeal was attributable to the advocate previously acting for the applicant. The contention was that even though the judgment was passed in 19^th November, 1991, the advocate did not inform the applicant about it until March 1993.

 

Delay mistake of the applicant's advocate

It was submitted for the applicant that to deny the leave would be to visit the mistake of the advocate upon the litigant. The court was reminded in support of the holding in The public Trustee of Kenya-v-Francis Muchina Kamau (Civil Application No. Nai. 26 of 1985 (unreported). The Court of Appeal in that case held in that case that mistakes by advocates should not prejudice litigants in any litigation and should be excused.

 

The applicant also expressed the view that in land matters, parties should not be obstructed in having their disputes finally determined by the court. In support, the decision of the court of Appeal in John Kuria-v-Kalen Wahito (Civil Application no. Nai. 19 of 1983 (unreported) was cited.

 

Opposition on ground that delay inordinate

The application was opposed on the ground that there had been excessive, flagrant and inordinate delay on the part of the applicant.

 

The court agreed with Respondent and held that the delay was excessive, flagrant and inordinate. The learned judge was convinced that the delay was occasioned by the fact that the applicant did not bother whichever way the judgment went.

 

Court's reasons for agreeing delay inordinate

In coming to this conclusion, the court considered that the applicant evidently knew when the trial came to an end and also the date fixed for the delivery of judgment. Further, it reasoned that obviously the applicant was anxious to know the conclusion and the decision and therefore was incumbent upon it as a prudent litigant to be in constant touch with its advocate. In the circumstances, the court thought it unthinkable that the applicant would agree to be in the dark for about two years.

 

The authorities distinguished

The fact that the applicant did not file the application until after two months after the advocate informed him of the judgment was also considered. The court concluded that even if it was to be assumed that the former advocate was guilty of negligence, such delay by the applicant of being informed of the judgment was culpable.

 

On the fact that land issue was involved, the court considered that an innocent third party purchaser of the land not party to the subject suit was involved. It concluded that that explained why the applicant had been compensated for by damages.

 

Conclusion

In conclusion, the court found that the applicant had not given a reasonable explanation for the inordinate delay that had occurred and that the same had not been explained to the court's satisfaction. The court therefore declined to exercise its discretion in favour of the applicant and therefore dismissed the application with costs.