Gabriel Osimbo v Chrispinus Mandare [2020] KECA 799 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that the Christmas vacation period doesn't count when calculating the 30-day deadline for filing appeals from lower courts.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Order 50 Rule 4 of the Civil Procedure Rules, 2010 (excluding the period 21st December to 13th January in computing time) applies to the filing of appeals from the subordinate court to the High Court, such that the appeal filed on 7th February 2011 was filed within time
- 2.Whether the learned Judge erred in deciding the appeal on the basis of an issue (filing out of time) which had not been pleaded or raised by the parties and without giving the appellant an opportunity to be heard
- 3.Whether the learned Judge erred in failing to consider that an appeal filed out of time can be validated by leave under the proviso to section 79G of the Civil Procedure Act, and in failing to apply Article 159(2)(d) of the Constitution and the overriding objective
Key legal issues
#Whether the Christmas vacation period is excluded in computing the 30-day time limit under section 79G of the Civil Procedure Act
Yes. Order 50 Rule 4 of the Civil Procedure Rules omits the period between 21st December and 13th January from computations of time for filing documents; read with Rule 2(2)(b) of the High Court Practice and Procedure Rules (Christmas vacation) and section 57(b) of the Interpretation and General Provisions Act, the appeal filed on 7th February 2011 was filed in time. This is the ratio of the decision.
The court traced the statutory framework: section 79G fixes 30 days for filing appeals from subordinate courts to the High Court; Order 50 Rule 4 excludes the Christmas vacation period from computations of time for doing acts under the Rules or court orders; the High Court Practice and Procedure Rules define the vacation as 21st December to 13th January; and section 57(b) of the Interpretation and General Provisions Act guides computation of time under written law. The concurring judgment stressed that Order 50 Rule 4 does not contradict section 79G but merely governs how days are computed. The vacation period was therefore excluded, making the appeal timely.
Whether the High Court Judge erred in dismissing the appeal on the unpleaded issue of timeliness without hearing the parties
Yes. The learned Judge outrightly dismissed the appeal on the basis that it was filed out of time without allowing the parties the right to be heard on that issue, contrary to fair hearing principles.
The court found merit in the appellant's contention that the Judge decided the appeal on a basis not pleaded or raised by either party. Citing Kamlesh Mansukhalal Damji Pattni, the court emphasized that judicial decisions must be redolent of fairness, judicial authority deriving from the people under Article 159(1) of the Constitution. Deciding an unraised issue without inviting submissions denied the appellant an opportunity to be heard and constituted a misdirection warranting interference with the decision below.
Whether an appeal filed out of time can be validated by subsequent leave, and the application of Article 159(2)(d) and the overriding objective
Yes. The court reiterated its broad interpretation of the proviso to section 79G: an appeal filed out of time may be validated by seeking and obtaining leave; and courts must weigh prejudice and do substantive justice without undue regard to procedural technicalities.
Relying on Charles Karanja Kiiru v. Charles Githinji Muigwa, adopting Martha Wambui v. Irene Wanjiru Mwangi, and Abubaker Mohamed Al-Amin, the court held that an appeal filed out of time can be validated later by leave. It further cited Abdirahman Muhumed Abdi v Safi Petroleum for the proposition that since the enactment of sections 3A and 3B of the Appellate Jurisdiction Act and Article 159(2)(d), courts must weigh delay, cost and prejudice rather than mechanically striking out filings, while not ignoring procedural improprieties altogether.
Legal principles established
#- The Christmas vacation period between 21st December and 13th January is excluded, under Order 50 Rule 4 of the Civil Procedure Rules, in computing the 30-day period prescribed by section 79G of the Civil Procedure Act for filing an appeal from a subordinate court to the High Court.
- Order 50 Rule 4 is a computation-of-time rule and does not conflict with the statutory 30-day limit in section 79G of the Civil Procedure Act.
- An appeal filed out of time under section 79G may be validated by subsequently seeking and obtaining leave of court to admit it out of time under the proviso to that section.
- A court should not decide an appeal on an issue not pleaded or raised by the parties without affording them an opportunity to be heard.
- In a second appeal, the Court confines itself to matters of law unless it is shown the courts below considered matters they should not have, failed to consider matters they should have, or the decision is perverse.
Court orders
#- 1.The appeal is allowed with no orders as to costs
- 2.The Judgment and Decree of the High Court dated and delivered on 4th March, 2015 is set aside
- 3.Busia High Court Civil Appeal No. 3 of 2011 is remitted back to the High Court for hearing by a Judge other than Tuiyott, J.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Principal judgment. Held that the appeal to the High Court was filed in time because the Christmas vacation period (21st December to 13th January) is excluded in computing time under Order 50 Rule 4 of the Civil Procedure Rules; further held the learned Judge erred in dismissing the appeal on an issue not raised by the parties and in failing to consider that an appeal filed out of time may be validated by leave under the proviso to section 79G, guided by Article 159(2)(d).
Therefore, applying the above to the instant matter, I find that the appeal to the High Court was filed in time as the Christmas vacation period is excluded for purposes of computation of time stipulated for filing of documents.p. 3
Wrote the judgment
Separate concurring judgment agreeing the appeal should be allowed, elaborating that Order 50 Rule 4 simply governs the manner of computing time and does not contradict section 79G of the Civil Procedure Act; with the vacation period excluded, the appeal filed on 7th February 2011 was within time.
Thus, Order 50 Rule 4 does not contradict section 75G of the Civil Procedure Act, which provides a time limit of 30 days for filing an appeal. Order 50 Rule 4 simply provides how these days are to be computed if the period falls within the High Court vacation.p. 5
- On appeal from
- High Court of Kenya at Busia
- H.C.C.A. No. 3 of 2011
- Jurisdiction invoked
- First appellate/second appellate jurisdiction of the Court of Appeal over appeals from the High Court (second appeal in this matter), the appeal having been preferred under the Court of Appeal's appellate jurisdiction; delivery in accordance with Rule 32(3) of the Court of Appeal Rules following the retirement of Githinji, JA.
Relief refused
#Costs of the appeal and costs of the High Court awarded to the appellant (as sought)
Although the appeal was allowed, the court declined to award costs, giving no orders as to costs
Costs
No orders as to costs (the appeal was allowed 'but with no orders as to costs'). Note: the concurring judgment of Okwengu, JA would have awarded costs of the appeal to the appellant, creating an internal inconsistency in the record.
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.
Therefore, applying the above to the instant matter, I find that the appeal to the High Court was filed in time as the Christmas vacation period is excluded for purposes of computation of time stipulated for filing of documents.
The rule simply provides the manner of computing time. It does not provide for any specific time for doing or taking any action.
an appeal can be filed out of time and validated later by way of seeking and obtaining leave of court to admit it out of time
Accordingly, I would allow this appeal but with no orders as to costs. The Judgment and Decree of the High Court dated and delivered on 4th March, 2015 is hereby set aside and Busia High Court Civil Appeal No. 3 of 2011 is hereby remitted back to the High Court for hearing by a Judge other than Tuiyott J.
This judgment is delivered in accordance with Rule 32(3) of the Court of Appeal Rules, as Githinji, JA has retired from service.
Issues in the judgment
#Costs inconsistency: the principal judgment orders no costs, while the concurring judgment would award costs of the appeal to the appellant.
Typographical error in the concurring judgment citing 'section 75G' of the Civil Procedure Act where section 79G is clearly meant.
The record contains a background discrepancy: the appellant's memorandum of appeal in the High Court challenged the dismissal of the application dated 16th September, 2010, while the ruling dismissing applications was dated 24th December, 2010 and is elsewhere described as dismissing the application dated 27th July, 2010.
The record is a certified copy showing only the judgments of J. Mohammed, JA and H. Okwengu, JA; Githinji, JA is named in the coram but the judgment states he retired from service before delivery, so the actual deciding bench comprised two judges.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gabriel Osimbo v Chrispinus Mandare [2020] KECA 799 (KLR)", Case Analysis (2020). Civil Appeal No. 86 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/799/eng@2020-04-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.