John Gitau Karogo & Another v Paul Khaemba [2002] KECA 61 (KLR)
The bottom line
#Kenya's Court of Appeal excused an eight-day late appeal filing, holding short delays not caused by the appellant should not defeat the right to appeal.
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 notice of appeal lodged by the applicants on 28th August 2001, some eight days out of time, should be validated and deemed lodged in time
- 2.Whether the eight-day delay in lodging the notice of appeal was inordinate and should disentitle the applicants from exercising their right of appeal
- 3.Within what period the record of appeal should be lodged where a copy of proceedings has not been availed to the applicants
Key legal issues
#Whether a notice of appeal lodged eight days out of time should be deemed duly lodged
Yes. The application was allowed and the notice of appeal lodged on 28th August 2001 was deemed lodged in time.
The judgment sought to be appealed was not delivered on the notified date of 3rd August 2001, and in the absence of a replying affidavit the court had no reason to believe the applicants' advocates knew of the new delivery date. Although the advocates had the judgment's main contents by 14th August 2001 and could have lodged the notice by 20th August 2001, the eight-day delay was not inordinate, the right of appeal was undoubted, and the delay was not the applicants' fault.
Within what period the record of appeal should be lodged where a copy of proceedings has not been availed
The record of appeal is to be lodged within 60 days after the applicants' advocates receive the copy of proceedings.
Having validated the notice of appeal, the court fixed a realistic deadline for filing the record. Because no copy of proceedings had been supplied to the applicants, the 60-day period was made to run from receipt of that copy by the applicants' advocates rather than from the date of the notice of appeal. This avoids penalising the applicants for a delay not of their making while still imposing a defined deadline for prosecuting the appeal.
Legal principles established
#- An eight-day delay in lodging a notice of appeal is not inordinate where the judgment was not delivered on the notified date and the delay is not the applicant's fault; such a delay does not disentitle an applicant from exercising an undoubted right of appeal. As a Court of Appeal ruling, this binds lower courts and tribunals.
- Where a copy of proceedings has not been availed to an intending appellant, the period for lodging the record of appeal runs from the appellant's advocates' receipt of that copy.
Court orders
#- 1.The notice of appeal lodged on 28th August, 2001 is deemed to be lodged in time
- 2.The record of appeal to be lodged within 60 days after receipt by the applicants' advocates of the copy of proceedings
- 3.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Not stated in the judgment; the matter was an application to validate a notice of appeal lodged out of time in an intended appeal
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.
However, the eight day delay is not so inordinate as to disentitle the applicants from exercising their undoubted right of appeal.
It is not the applicants' fault that their notice of appeal was not lodged in time.
I allow this application and order that the notice of appeal lodged on 28th August, 2001 is deemed to be lodged in time.
As a copy of proceedings has not been availed to the applicants I order that the record of appeal be lodged within 60 days after receipt by the applicants' advocates of such copy.
I make no order as to costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Gitau Karogo & Another v Paul Khaemba [2002] KECA 61 (KLR)", Case Analysis (2002). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/61/eng@2002-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.