Karilus Odongo Mgeni vToworo Industries Ltd [2002] KECA 26 (KLR)
The bottom line
#Kenya's Court of Appeal refused to revive a late appeal, confirming a notice of appeal stays alive until a court formally withdraws it.
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 to file and serve the Notice of Appeal and the Record of Appeal
- 2.Whether the applicant could be granted leave to lodge a fresh notice of appeal where the original notice of appeal filed on 15th May 2001 remained extant
Key legal issues
#Whether leave to appeal had to be obtained before lodging a notice of appeal where the appeal lay only with leave
No. Under rule 74(4) of the Court of Appeal Rules, the notice of appeal may be lodged before leave or a certificate is obtained; the applicant's submission to the contrary was rejected.
The applicant's advocate argued he could not file the notice of appeal before obtaining leave to appeal from the superior court. The court rejected this, holding that rule 74(4) expressly removes any requirement to obtain leave or a certificate before lodging the notice. Consequently the notice filed on 15th May 2001 was simply out of time, filed without leave, and the delay was unexplained.
Whether a lapsed or expired notice of appeal may be replaced by a fresh notice with the Court's leave
No. A notice of appeal is not deemed withdrawn under rule 82 except by order of the Court; the original notice of 15th May 2001 remained extant, so leave to file a second notice could not be granted.
The applicant sought leave to lodge a fresh notice of appeal on the ground that the original had expired under rule 82(a). The court held that expiry under rule 82 does not automatically extinguish the notice; only a court order can deem it withdrawn. Since the first notice was still in existence, granting leave for a second would be improper, and without a fresh notice there was no basis to extend time for the record of appeal.
Legal principles established
#- A notice of appeal cannot be deemed to have been withdrawn (lapsed) under rule 82 of the Court of Appeal Rules except by an order of the Court to that effect; until such an order, the notice remains extant and a second notice cannot be filed.
- Where an appeal lies only with leave or on a certificate that a point of law of general public importance is involved, it is not necessary to obtain the leave or certificate before lodging the notice of appeal (rule 74(4)).
Court orders
#- 1.Dismissal of the application for extension of time to file and serve the Notice of Appeal and the Record of Appeal
- 2.Costs assessed at Shs.5,000/= to be paid by the applicant within 30 days, and in default execution to issue
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya (Commissioner of Assize)
- Not stated in the judgment
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time)
Relief refused
#Extension of time to file and serve the Notice of Appeal
The notice of appeal filed on 15th May 2001 was filed out of time and without leave, but the fatal obstacle was that the original notice remained extant
Leave to lodge a fresh notice of appeal
A notice of appeal cannot be deemed withdrawn under rule 82 except by order of the Court, so the original notice was still in existence
Extension of time to lodge the Record of Appeal
It was pointless once extension for a fresh notice of appeal was refused
Costs
Application dismissed with costs assessed at Shs.5,000/= to be paid by the applicant within 30 days and in default execution to issue
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.
As I understand the law a notice of appeal cannot be deemed to have been withdrawn under rule 82 except by the order of the Court to that effect.
The applicant therefore cannot be given leave to file a second notice of appeal while the first one is still in existence.
In the circumstances I have no alternative but to dismiss this application with costs assessed at Shs.5,000/= to be paid by the applicant within 30 days and in default execution to issue.
Issues in the judgment
#The judgment refers inconsistently to the date of the extant notice of appeal - elsewhere it is stated as filed on 15th May 2001, but in this passage it is dated 15th April 2001
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Karilus Odongo Mgeni vToworo Industries Ltd [2002] KECA 26 (KLR)", Case Analysis (2002). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/26/eng@2002-06-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.