Mugure Mahinda v Ali Mohammed Farah [2016] eKLR

Key Facts

Issues

• The applicant urged the court to apply the overriding objective principle to achieve justice, while the respondent contended that the long-standing litigation (19 years) should end. The court balanced these considerations to determine if justice required granting the extension.
• The court evaluated whether the applicant's 8-month delay in filing the appeal after receiving proceedings was justified, considering her age, health, and the advocate's oversight. The respondent argued the delay demonstrated bad faith and laches, while the applicant attributed it to the advocate's failure to act promptly.
• The court considered the principle that litigants should not suffer from their advocate's mistakes. The applicant's advocate failed to follow up on proceedings and the secretary did not alert the advocate, but the applicant had no control over the office's operations. The respondent argued this was an abuse of process.

Holdings

• The court exercised its discretion to grant the applicant leave to file a notice of appeal out of time, attributing the delay to the advocate's office and the court's failure to supply a typed copy of proceedings promptly. The applicant's personal circumstances (age, health) were not satisfactorily demonstrated as contributing factors.
• Conditions were imposed for the appeal: (1) Notice of appeal must be filed within 7 days of the ruling, (2) Record of appeal within 21 days, and (3) costs to be agreed or assessed.

Remedies

• The costs of the application must be agreed upon or assessed by the court and awarded to the respondent (Ali Mohammed Farah).
• The applicant is required to file the Record of Appeal within 21 days from the date of the ruling (16th June 2016).
• The applicant is granted leave to file and serve the Notice of Appeal within 7 days from the date of the ruling (16th June 2016).

Legal Principles

Precedent Name

• Peterson Mbogori & Another v Farhax T Aliwala Mombasa
• Gatti v Shoosmith
• Catherine Njugunini Kanya & 2 Others versus Commercial Bank of Africa Ltd
• LEE G. MUTHOGA V HABIB ZURICH FINANCE (K) LTD & Another
• Kirpal Signh Sirha v Barclays Bank Ltd
• Owino Ger versus Marmanet Forest Co-operative Credit Society Ltd
• Maina versus Mugiria
• Cyrus Muriithi Mathangani versus Rose Wanjiru Mbai
• Hilda Kaari Mwendwa versus Zakayo M. Magara & 2 others
• Belinda Murai v Amos Wainaina
• CFC Stanbic Limited versus John Maina Githaiga & Another
• Cassam v Sachania
• Aviation Cargo Support Limited versus St. Mark Freight Services Limited
• James Migwi & another versus Susan Wanjiku Mwangi
• Joseph Njuguna Muniu versus Medicino Gionvanni
• Stephen Muriithi Gitahi v Jesse Mugo Gitahi
• Kisee Maweu v Liu Ranching & Farming Co-operative Society Ltd

Cited Statute

Judge Name

Passage Text

• It is therefore my finding that the applicant has satisfactorily explained the delay in presenting the application between the 6th day of May 2011 when the dismissal order was rendered up to the 21st day of April 2015 when a typed copy of the proceeding was availed to her.
• In the result and for the reasons given above, I am inclined to exercise my discretion in favour of the applicant on the conditions that:- 1. The Notice of appeal is filed and served within 7 days of the ruling. 2. The Record of appeal is filed within 21 days of the ruling. 3. Costs of the application to the Respondent to be agreed or assessed.
• It's a widely accepted principle of law that a litigant should not suffer because of his advocate's oversight.