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Court of AppealAllowedNot stated in the judgment

John Gitau Karogo & Another v Paul Khaemba [2002] KECA 61 (KLR)

Court of Appeal of Kenya
19 February 2002
280 words in judgment
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The bottom line

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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

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nakuru delivered by Shah, JA, on 19th February 2002, determining an unopposed application to validate a notice of appeal lodged some eight days out of time. The judgment intended to be appealed had not been delivered on the date notified for delivery, 3rd August 2001, and no replying affidavit was filed by the respondent, who although served did not attend the hearing. The court therefore had no reason to believe that the applicants' advocates were aware of the new delivery date. The factor that weighed with the court was that the advocates had the main contents of the judgment by 14th August 2001 yet lodged the notice of appeal only on 28th August 2001, when they could have lodged it by 20th August 2001 to be in time. The court nonetheless held that an eight-day delay is not so inordinate as to disentitle the applicants from exercising their undoubted right of appeal, and that it was not the applicants' fault that the notice was late. The application was allowed: the notice of appeal lodged on 28th August 2001 was deemed lodged in time; because no copy of proceedings had been availed, the record of appeal was to be lodged within 60 days after the applicants' advocates received that copy; and the court made no order as to costs. As a Court of Appeal decision, the ruling binds lower courts on the principle that a short delay not attributable to an applicant does not defeat an undoubted right of appeal. The parties, the case number and the court of first instance are not identified in the judgment as provided.

Questions the Court framed

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

  1. 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. 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. 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

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01

Whether a notice of appeal lodged eight days out of time should be deemed duly lodged

Holding

Yes. The application was allowed and the notice of appeal lodged on 28th August 2001 was deemed lodged in time.

Reasoning

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.

p. 1
02

Within what period the record of appeal should be lodged where a copy of proceedings has not been availed

Holding

The record of appeal is to be lodged within 60 days after the applicants' advocates receive the copy of proceedings.

Reasoning

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.

p. 1

Legal principles established

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  • 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

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  1. 1.The notice of appeal lodged on 28th August, 2001 is deemed to be lodged in time
  2. 2.The record of appeal to be lodged within 60 days after receipt by the applicants' advocates of the copy of proceedings
  3. 3.No order as to costs

The bench

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

majority

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

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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.

However, the eight day delay is not so inordinate as to disentitle the applicants from exercising their undoubted right of appeal.
p. 1Extension of time - short delay not inordinate
It is not the applicants' fault that their notice of appeal was not lodged in time.
p. 1Extension of time - absence of fault by applicant
I allow this application and order that the notice of appeal lodged on 28th August, 2001 is deemed to be lodged in time.
p. 1Final orders - notice of appeal deemed filed 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.
p. 1Final orders - time for lodging record of appeal
I make no order as to costs.
p. 2Final orders - costs

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, "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.