K.H. Osmond v Daima Bank Limited& Whitestone Auctioneers (K) Limited [2001] KECA 215 (KLR)
The bottom line
#The Court of Appeal gave a man a second chance to appeal a Shs.48 million judgment, ruling his lawyer's honest mistake shouldn't doom the case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the court should extend time under rule 4 for the applicant to file a fresh notice of appeal, memorandum and record of appeal out of time, after the original notice of appeal was struck out
- 2.Whether a mistake of counsel in insisting on certified copies of proceedings and judgment warrants the indulgence of extension of time
Key legal issues
#Whether extension of time should be granted where the delay resulted from counsel's mistaken belief that certified copies of proceedings and judgment were needed to mount an appeal
Extension of time granted; counsel was labouring under a common fallacy and was given the benefit of the doubt in the exercise of the court's unfettered discretion under rule 4.
The court held that certified copies are unnecessary for mounting an appeal, only the order or decree appealed against requires certification. Counsel's insistence on certified copies was a common fallacy. Although mistakes of counsel generally cannot be visited on the party, the court accepted counsel acted in good faith under that fallacy and, in the exercise of its unfettered rule 4 discretion, allowed a fresh appeal to be lodged, balancing the interests of both litigants.
Whether a record of appeal lodged while the notice of appeal was still on foot survives the striking out of that notice
The record of appeal lodged on 13th February 2001 stood spent once the notice of appeal was struck out; a fresh notice of appeal and fresh record of appeal were mandatory.
The court reasoned that lodgment of a fresh notice of appeal is mandatory once the previous one is struck out. Although the record of appeal lodged on 13th February 2001 remained on the file, it stood spent following the striking out of the notice of appeal, so counsel was right to seek to lodge a fresh record of appeal rather than rely on the existing one.
Legal principles established
#- Certified copies of proceedings and judgment are not required to mount an appeal; only the order or decree appealed against needs to be certified.
- Mistakes of counsel generally cannot be laid at the door of the party, and once a notice of appeal is struck out, a fresh notice of appeal must be lodged for the appeal to proceed.
- Exercise of discretion under rule 4 must consider the interests of both litigants.
Court orders
#- 1.Extension of time granted to lodge a fresh notice of appeal and record of appeal
- 2.The applicant to file his fresh notice of appeal within seven days
- 3.The record of appeal to be filed within 21 days of the lodgment of the notice of appeal
- 4.Liberty granted to the applicant to lift copies of his record of appeal from the Registry and re-use such portions as he deems fit
- 5.The applicant to pay the costs of the application assessed at Shs.12,000/= within 30 days, failing which execution may issue
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Rules 4, 41, 42 and 47 of the Court of Appeal Rules
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is now clear beyond peradventure that such copies are not necessary.
Exercise of discretion under rule 4 is a two way traffic. I must be mindful of the interests of both litigants.
The applicant shall file his fresh notice of appeal within the next seven days and its record of appeal within 21 days of the lodgment of the notice of appeal.
The applicant will however pay the costs of this application which I assess at Shs.12,000/= within the next 30 days failing which execution may issue.
Issues in the judgment
#The judgment states the certified proceedings were made available on 27th November 2000 and the appeal was lodged on '13th February, 2000', which is internally inconsistent with the record of appeal being 'lodged on 13th February, 2001' later in the judgment; the 2000 date appears to be a typographical error for 2001.
The signature block is anomalous: it reads 'A.B.' above 'JUDGE OF APPEAL' with 'SHAH' appended at the end, leaving the judge's full name incompletely printed in the copy.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- K.H. Osmond v Daima Bank Limited& Whitestone Auctioneers (K) Limited [2001] KECA 215 (KLR)[2001] KECA 215 (KLR)4 Apr 2001followed
Cite this brief
#Cite this brief
Caselaw, "K.H. Osmond v Daima Bank Limited& Whitestone Auctioneers (K) Limited [2001] KECA 215 (KLR)", Case Analysis (2001). Civil Application No. Nai. 264 of 2000 (as extracted; ruling on extension of time following striking out of notice of appeal in Civil Application No. Nai. 359 of 2000). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/215/eng@2001-04-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.