|Civil Application Nai 130 of 1986
|Loise Wainaro Wamiti v Peter Wainaro Wambunyu, Alice Njeri Wamiti & John Kinuthia
|18 Sep 1986
|Court of Appeal at Nairobi
|Harold Grant Platt
|Loise Wainaro Wamiti v Peter Wainaro Wambunyu & 2 others  eKLR
|Mrs Khaminwa for the Applicant Mr Ngwiri for the Respondent
|(Application for extension of time to file the record of appeal from a judgment of the High Court of Kenya at Nairobi (Sachdeva, J) dated December, 1985 IN H C Probate Admin Case No 885 of 1984
|Mrs Khaminwa for the Applicant Mr Ngwiri for the Respondent
|History Docket No:
|885 of 1984
|Surrender Kumar Sachdeva
Wamiti v Wambunyu & 2 others
Court of Appeal, at Nairobi September 18, 1986
Civil Application No NAI 130 of 1986
(In an intended appeal against the judgment of the High Court at
Nairobi, Sachdeva J)
Appeal – extension of time for filing – application for – fraud by applicant’s advocate’s clerk leading to delay in filing application – advocate not filing application within reasonable time of discovering fraud – failure of applicant’s advocate to serve respondent with copy of letter to registrar requesting for proceedings – effect of – whether applicant entitled to extension of time – Court of Appeal Rules rule81(1), (2).
The applicant, who was a party to a suit in the High Court, filed a notice of appeal five days after the judgement was delivered and requested for copies of the proceedings. This request, however, was not served on the respondent’s advocate but the applicant’s advocate nevertheless obtained a certificate for the delay in obtaining the proceedings. The applicant presented some money to his advocate’s firm as fees but this money was misappropriated by a clerk in that firm and the advocate, who was under the impression that the applicant had not paid the fees, did not file an appeal within the time prescribed for doing so. About three months after the fraud by the clerk was discovered, the appellant’s advocate filed an application for leave to lodge the record of appeal within extended.
1. It was immaterial that the certificate of delay had been acquired by the applicant’s advocate since the failure to serve the respondent with the letter requesting for the proceedings meant that the period of delay in obtaining the proceedings could not be relied on by the applicant, as provided in rule 81(1) and (2) of the Court of Appeal Rules.
2. If an advocate’s clerk is fraudulent and conceals his dealings with a client, there is not much the advocate can do until the fraud is discovered and the period of the fraud cannot be held against the lay client.
3. The applicant’s advocates were at fault for their lack of initiative to put things right after the fraud of their clerk was discovered. It is on the basis of the advocates’ fault that this application should succeed.
Application allowed, advocates to pay the costs personally.
No cases referred to.
Court of Appeal Rules (cap 9 Sub Leg) rule 81(1), (2)
Mrs Khaminwa for the Applicant
Mr Ngwiri for the Respondent
|Both Parties Represented
|The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information
IN THE COURT OF APPEAL
LOISE WAINARO WAMITI …………………………...……………….. APPLICANT
1. PETER WAINARO WAMBUNYU )
2. ALICE NJERI WAMITI ) ………….…..………................……… RESPONDENTS
3. JOHN KINUTHIA
(Application for extension of time to file the record of appeal from a
judgment of the High Court of Kenya at Nairobi (Sachdeva, J)
dated December, 1985
H C Probate Admin Case No 885 of 1984
This application for leave to lodge the record of appeal within extended time was contested, as well as it might be.
Sachdeva, J gave judgment on December 5, 1985. On December 10, 1985 the notice of appeal was filed and it was also served. Unfortunately, the request for copies of proceedings and judgment of the same rate was not served. Mr Ngwiri for the respondent has confirmed this fact, about which Mrs Khaminwa was unsure. After that the clerk dealing with appeals in the chambers of Khaminwa and Khaminwa fraudulently misappropriated the appellant’s money paid as fees. The copies were ready by February 17, 1986 and this became known to Mrs Khaminwa office on February 26, 1986. It appears that the charges for the copies were paid to the court. The date is unkown. Mrs Khaminwa had thought that the applicant had not brought the fees. The fraudulent activities of this clerk became known in May 1986 and the papers were received by Khaminwa & Khaminwa on May 23, 1986. Then it was found that the time to lodge the record of appeal had expired. It had expired on February 9, 1986 or thereabouts. But after May 23, 1986 it still took until August 11 to apply. The application has been heard in vacation.
Several aspects call for special mention-
1.As the copy of the letter requesting proceedings was not served on the respondent the proviso to rule 81(1) of the Court of Appeal Rules does not apply (See Rule 81(2) of the rules.) Hence, it is immaterial that a certificate of delay was acquired during the course of the hearing of this application. The Registrar should be more careful in certifying delay. His certificate covers the period from December 10, 1985 to May 23, 1986. It should surely have ended on February 26, 1986 at the latest. It did not take the court from February 26, 1986 to May 23, 1986 to prepare the copies. It is therefore with relief that I do not have to deal with the certificate of delay.
2.If a clerk is fraudulent and conceals his dealings with a client there is not much a senior partner can do until the fraud is discovered. This is not the first time that this has happened. The period of the fraud cannot be held against the lay client. I would excuse the period up to May 23, 1986. It may be that this clerk also failed to serve the request for proceedings.
3.It is at this point that the application becomes very difficult. The time for lodging the appeal had expired over three months earlier in February 1986. Yet another three months expired before this application was made. The explanation by Mrs Khaminwa is that her client did not bring her the fees for this application. Why was that? It may be implied that her client was financially hard-pressed. The respondent has sworn no affidavit to this effect, and there is therefore no explanation for this delay. I would have thought that after this firm of advocates had found that a clerk had prejudiced the appeal, that the firm would have made good the lost time as far as possible and if necessary advanced the fees. No one knows how much the respondent had advanced the fraudulent clerk in any case. The firm had also not served the request for the proceedings. That had prejudiced the appeal as well. I am not sure what a lay client would think about all of this, but I consider he or she would at least expect the firm to put things right. I find that the advocates ought to have moved stenuously to save their client in May, 1986 as soon as they had found out what had happened, and they did not do so. I put this delay down to the advocates as they ought to have shouldered the burden fully, without blaming their client for not bringing further fees.
Mr Ngwiri has, however, pointed out that the subject matter of the appeal ought to be res judicata. The respondent did not appeal at an earlier stage. She has had a good deal of attitude from the courts. I see that, but I was not sure I can say clearly that there could be no appeal. I have to weigh this with the effect of the fraud and failure to serve the request for proceedings. It is my view that the latter outweighs the earlier indulgence. I do not know of any lay client from whatever walk of life that the client might come, who would not feel bitter at being cheated out of an appeal substantially by the fraud of this firm’s clerk and the lack of initiative of this firm to put things right when the fraud had been discovered. It is on this basis, the fault of the advocates, that the application succeeds.
I will grant an extension of 30 days from today’s date for the record of appeal to be lodged. The advocates should pay the costs personally unless they wish to show cause why they should not. If they do, I will hear them.
Dated at Nairobi this 18th day of September, 1986.
JUDGE OF APPEAL
I certify that this is a true copy of the original