Charagu v Kaguru

Court of Appeal, at Nairobi June 5, 1986

Hancox JA

Civil Application No NAI 23 of 1986

(In an intended appeal from an order of the High Court at Nairobi,

Gachuhi, Aganyanya JJ)

Appeal – extension of time – for filing notice of appeal – application for – delay in filing Notice of Appeal – delay caused by applicant’s advocate’s mistake – case involving complex land issues - whether applicant entitled to extension of time.

Judicial discretion – exercise of – discretion to extend time to file Notice of Appeal – delay in filing Notice occasioned by mistake of advocate – case involving complex land issues – whether applicant entitled to exercise of discretion in his favour.

The applicant was a party to a suit in the High Court in which judgment had been entered but his advocate had mistakenly filed the Notice of Appeal in that Court rather than in the Court of Appeal. By the time the error was discovered, the time prescribed for the filing of a Notice of Appeal in the Court of Appeal had expired. The applicant applied for an extension of this time, informing the court that he had not been told of the date of the judgment in the High Court and he had only learnt of it over two months after it was delivered.

Held:

1. This was a complicated land case in which it would be unfortunate if justice were not fully seen to be done in the appellate court.

2. Despite the delay of 2 months from the day when the Notice of Appeal was due, the Court would exercise its discretion in favour to of the applicant.

Application allowed.

Cases

No cases referred to.

Statutes

No statutes referred.

Advocates

Parties in person.

Kiramburi v Githinji

Court of Appeal, at Nyeri May 23, 1986

Hancox JA

Civil Application No NAI 60 of 1986

(In an intended appeal from the judgment of the High Court at Nyeri,

Patel J)

Appeal – extension of time for filing – application for – whether mandatory for application to include Memorandum of Appeal – delay in obtaining copy of judgment to be appealed from - failure by applicant to obtain Registrar’s certificate of delay – effect of – whether applicant precluded from seeking extension of time – Court of Appeal Rules rule 4; 81(1), (2).

The applicant brought an application under rule 4 of the Court of Appeal Rules for an extension of the time within which to institute an appeal. The respondent’s advocate’s main objection to the application was that because no draft Memorandum of Appeal accompanied the application, the nature of the case, the merits of the intended appeal and whether there would be prejudice to one side or the other if the application was or was not granted were not sufficiently disclosed. The appellate judge perused the records of two lower courts in order to ascertain the subject matter of the case.

Held:

1. As a general rule, an applicant for an extension of time should support his application with a sufficient statement of the nature of the judgment and of his reasons for desiring to appeal against it in order to enable the court to determine whether or not a refusal of the application would appear to cause injustice. This is a salutary rule with which an advocate is advised to comply as failure to do so may well lead to the dismissal of his application.

2. From the perusal of the records of the case in the two lower courts, this Court was satisfied that the appeal was not entirely without prospects of success.

3. (Obiter) Where there is delay in receiving copies of the proceedings of a case from the Registrar for the purposes of filing an appeal, the failure to obtain a certificate of delay under the proviso to rule 81(1) of the Court of Appeal Rules does not preclude an applicant from seeking an extension of time under rule 4, though his task is made easier if the applicant obtains such certificate.

Application allowed.

Cases

1. Mehrunnissa v Mohamed Parvez (No 2) [1979] KLR 234

2. Pollok House Ltd v Nairobi Wholesalers Ltd (No 2) [1972] EA 172

3. Bhatt v Tejwant Singh & another [1962] EA 497

4. Shah v Jamnadas & Co Ltd [1959] EA 838

5. Ribiro v Annah Wanjira Civil Application No NAI 46 of 1982 (unreported)

6. Kuria v Kelen Wahito Civil Application No NAI 19 of 1983 (unreported)

Statutes

1. Magistrates Jurisdiction (Amendment) Act 1981

2. Court of Appeal Rules (cap 9 Sub Leg) rules 4; 81(1), (2)

Advocates

Miss Dar for the Applicant

Mr Ndirangu for the Respondent

Timsales Limited v Up & Down Saw Mills (Kenya) Limited

Court of Appeal, at Nakuru

November 6, 1985

Madan Ag CJ, Kneller & Hancox JJA

Civil Appeal No 46 of 1984

(Appeal from the High Court at Nakuru, Masime J)

Damages – mitigation of – damages for loss of use of machine – machine borrowed by appellant from respondent returned after two years in poor working condition – respondent hiring replacement machine – whether act of respondent sufficient - mitigation of damages – whether respondent should have purchased new machine within reasonable time – whether two years a reasonable time - whether respondent entitled to damages calculated until date of return of machine.

Tort – detinue – damages for – assessment of damages – loss of use of machine - machine borrowed by appellant from respondent returned after two years in poor working condition – respondent not purchasing replacement machine within reasonable time – whether respondent entitled to damages calculated until date of return of machine.

About one month after the respondent lent a portable cross-cut saw to the appellant, the respondent declined to take it back until the appellant had repaired the damage that had occurred to it while it was in the appellant’s use. In addition, the respondent claimed Shs 30 per day for loss of user of the saw. The appellant, however, returned the saw about two years later.

The respondent sued for the return of the saw in good working condition, damages and interest. The trial judge, in giving judgment in favour of the respondent, found, among other things, that in the circumstances, the respondent had been right in hiring an alternative machine to keep its business running and also in order to mitigate damages. Judgment was entered for the respondent for damages at the rate of Shs 30 per day from the day following the borrowing of the saw until the day of its return, the return of the saw in working condition or its replacement with a new saw and interest on the sum awarded. The appellant appealed.

Held:

1. The trial judge’s findings that the appellant had borrowed the machine while it was in good working condition, that he had failed to take reasonable care of it and that he had promised to repair it were all findings of fact supported by evidence.
2. The trial judge erred in saying that since the respondent expected the machine to be returned within a reasonable time, there was no obligation on its part to mitigate its losses by purchasing another machine.
3. The respondent ought to have mitigated the damage by purchasing another machine within a reasonable time during which he could expect the appellant to return the machine. Such reasonable time would be ninety days.
4. The period of more than two years allowed by the trial judge as the period in which the respondent could envisage the return of its machine and therefore not purchase a replacement was unreasonably long and therefore wrong. Consequently, it was wrong and exaggerated to award damages up to the time of the return of the machine by the appellant.

Appeal allowed on quantum of damages.

Cases

No cases referred to.

Statutes

No statutes referred.