Attorney General v James Alfred Koroso [2009] KECA 97 (KLR)
The bottom line
#Kenya's Court of Appeal extended time for a late appeal notice, ruling delay counts only after the service deadline expires, not from filing.
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 exercise its discretion to extend the time for serving the notice of appeal, having regard to the length and explanation for the delay, the arguability of the intended appeal and prejudice to the respondent
- 2.Whether, if extension is granted, it should be granted on terms, including costs
Key legal issues
#Principles governing extension of time to serve notice of appeal
The discretion is judicial, exercised on evidence and law, guided by the length of and reason for delay, arguability of the appeal and prejudice, though the factors are not exhaustive
The court restated the Sila Mutiso factors as settled but stressed they are not exhaustive and rare, objectively exceptional situations may still justify extension. Each case turns on its peculiar facts. The discretion must be exercised on the basis of the evidence and the law.
Computation of the period of delay in serving a notice of appeal
Delay runs from expiry of the period allowed for service, not from the date of filing of the notice
The respondent had computed delay from the date the notice of appeal was filed. The court held this approach prejudicial and incorrect: delay is only recognizable once the permitted period for service has lapsed. On that basis the three-day delay was short.
Adequacy of explanation for the delay
Although the proffered reason was facially plausible, unexplained discrepancies and apparent pre-dating in supporting documents meant the delay was not satisfactorily explained
David Mungai's successive affidavits exhibited inconsistent documents, including an imprest form whose approval appeared pre-dated. The judge declined to speculate on authenticity but found the discrepancy unexplained, weighing against the applicant. Despite this, the court exercised discretion in the applicant's favour because the appeal raised an unprecedented question of damages for violation of constitutional rights needing appellate guidance.
Legal principles established
#- In extension-of-time applications the court considers the length of the delay, the reason for the delay, the chances of the intended appeal succeeding, and prejudice to the other side; the list is not exhaustive
- Delay in serving a notice of appeal is computed from the last date within which service ought to have been effected, not from the date of filing
Court orders
#- 1.Extension of time within which the applicant is to serve his notice of appeal, for such period as to include the date the notice of appeal was served upon the respondent
- 2.Applicant condemned to pay the costs of the motion; extension granted without terms
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
- Rule 4 of the Court of Appeal Rules (extension of time to serve notice of appeal)
Relief refused
#Imposition of terms on the grant of extension of time
The judge declined the respondent's submission that any extension be conditional
Costs
The applicant (Attorney General) to pay the costs of the motion to the respondent.
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.
Accordingly I extend the time within which the applicant is to serve his notice of appeal for such period as to include the date the notice of appeal was served upon the respondent.
I however consider that the applicant should be condemned to pay the costs of this motion, which I accordingly do.
In considering the application the court is obliged to consider the length of the delay, the reason for the delay, possibly the chances of the intended appeal succeeding if the application is allowed and the likely prejudice to the opposite side if the application is granted
Delay is recognizable after the last date of the period within which service was to be effected.
It is the first one to my knowledge in which damages have been awarded on the head of violation of constitutional rights of a citizen. It is an issue which needs to be decided by this Court to provide guidance to the courts below.
Issues in the judgment
#The safari imprest documents supporting the explanation for delay bore internally inconsistent and apparently pre-dated dates, which the court noted but declined to resolve
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Attorney General v James Alfred Koroso [2009] KECA 97 (KLR)", Case Analysis (2009). Civil Application (Nairobi) – rule 4 application, Court of Appeal Rules. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/97/eng@2009-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.