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Court of AppealAllowedNot stated in the judgment

Joseph Maso Kiilu v Kingsway Tyres & Auto Mart Limited [2001] KECA 130 (KLR)

Court of Appeal of Kenya
3 December 2001
EOE. O. O'Kubasu
197 words in judgment
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The bottom line

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Kenya's Court of Appeal excused a four-day late appeal filing, blaming the lawyer's office, and gave the litigant fresh deadlines to restart.

What this practically means

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Executive summary

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This is a single-Judge ruling of the Court of Appeal at Nairobi, delivered by O'Kubasu, JA, on 3 December 2001, on an application for extension of time within which to file a Notice of Appeal and Memorandum of Appeal. The background was that the applicant's original notice of appeal had been served on the respondent's counsel four days out of time, with the consequence that the entire appeal was struck out, requiring the applicant to begin the process afresh. Counsel for the applicant, Mr. Kitonga, attributed the error to his own office. Counsel for the respondent, Mr. Akide, raised no objection to the application, which the Judge regarded as a proper concession. Exercising his discretion, the Judge allowed the application and directed that a fresh notice of appeal be filed within seven days of the ruling and that the memorandum of appeal be filed within twenty-one days of the filing of the notice of appeal. The costs of the application were ordered to abide the outcome of the intended appeal. The ruling is short, cites no authorities or statutory provisions, and turns on the court's discretionary power to excuse a short delay where the fault lies with counsel's office and the respondent does not object. It is a procedural interlocutory decision rather than a binding panel judgment on a substantive question of law.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant should be granted an extension of time to file a Notice of Appeal and Memorandum of Appeal after the original notice of appeal, served four days out of time, led to the appeal being struck out

Key legal issues

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01

Whether extension of time should be granted where the notice of appeal was served four days out of time and the appeal was struck out

Holding

The application was allowed; the applicant was granted an extension to file a fresh notice of appeal within seven days and a memorandum of appeal within 21 days thereafter.

Reasoning

The delay was brief and the error was attributed to counsel's office. The respondent's counsel properly raised no objection to the application. In those circumstances the single Judge of Appeal was satisfied that this was a proper case in which to exercise discretion in the applicant's favour, permitting the applicant to start the appeal process afresh with fixed timelines.

p. 2

Legal principles established

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  • Where an error in the filing or service of a notice of appeal is attributable to counsel's office and the respondent raises no objection, the court may properly exercise its discretion to grant an extension of time allowing the appeal process to start afresh.

Court orders

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  1. 1.The application for extension of time is allowed
  2. 2.The notice of appeal is to be filed within seven (7) days from the date of the ruling
  3. 3.A memorandum of appeal is to be filed within 21 days from the date the notice of appeal is filed
  4. 4.Costs of the application shall abide the outcome of the intended appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

EO
majority

Wrote the judgment

Jurisdiction invoked
Inherent discretion of the Court of Appeal to extend time for filing a Notice of Appeal and Memorandum of Appeal (statutory provision not cited in the judgment)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Hence the application is allowed and the notice of appeal is to be filed within seven (7) days from the date of this ruling and a memorandum of appeal to be filed within 21 days from the date the notice of appeal is filed.
p. 2Final orders - extension of time granted
I am satisfied that this is a proper case in which I should exercise my discretion in favour of the applicant.
p. 2Exercise of discretion to extend time
Costs of this application shall abide the outcome of the intended appeal.
p. 2Costs order

Issues in the judgment

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minor

The copy of the ruling contains garbled/overlapping text obscuring part of the passage, and the names of the parties and the case number are not stated in the judgment as provided.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Joseph Maso Kiilu v Kingsway Tyres & Auto Mart Limited [2001] KECA 130 (KLR)", Case Analysis (2001). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/130/eng@2001-12-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.