Kaloki v Independent Electoral and Boundaries Commission & 2 others
The bottom line
#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 applicant should be granted leave to file and serve a notice of appeal out of time
- 2.Whether the reasons for the delay are plausible and satisfactorily explained
- 3.Whether the intended appeal has chances of success
- 4.Whether the respondents would be prejudiced if the extension is granted
Key legal issues
#Extension of time to file notice of appeal under rule 4
The motion was merited; the delay was occasioned by the court's own varying directives on how to obtain certified copies, which was beyond the applicant's control, and no prejudice was shown by the unopposing respondents.
The court applied the Fakir Mohamed principles. The applicant attempted to file within the prescribed period but could not due to conflicting directives from the superior court, first permitting email requests and later requiring e-filing. The delay was thus plausibly explained. The respondents filed no reply or submissions, and refusing the motion would shut out the applicant's right of appeal entirely.
Chances of success of the intended appeal
No definitive finding was made; the single judge declined to comment further to avoid embarrassing the full bench.
The court acknowledged that assessing merits at the rule 4 stage is only a possibility test, and that a definitive finding by a single judge would embarrass the bench eventually seized of the appeal. It therefore made no further comment on this factor.
Legal principles established
#- The court's discretion under rule 4 to extend time is wide and unfettered but must be exercised judiciously, guided by settled principles.
- The rule 4 considerations are the length of the delay, the causes of the delay, the possibility of the appeal succeeding and prejudice to the parties.
- A single judge should make no definitive finding on the merits of the intended appeal when assessing its chances of success.
Court orders
#- 1.The applicant's motion dated March 8, 2020 is allowed in terms of prayer 1 - leave to file the notice of appeal out of time, with the notice and request for certified proceedings deemed duly filed within time
- 2.The applicant to file and serve the record of appeal within 60 days from the date of the ruling, failing which the orders shall stand vacated
- 3.Costs of the motion to abide the outcome of the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court
- Nairobi High Court JR Misc Appl No. 592 of 2017
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (single judge discretion to extend time)
Relief refused
#Prayer 2 - that costs of the application be in the cause
The court instead ordered costs to abide the outcome of the intended appeal
Costs
The costs of the motion shall abide the outcome of the 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.
The court has wide and unfettered discretion in deciding whether to extend time or decline the same. However, in exercising its discretion, the court should do so judiciously.
the length of the delay, the causes of the delay, the possibility of the appeal succeeding and prejudice to be occasioned to the parties.
I am satisfied that the applicant will be prejudiced if the instant motion is not allowed as his right of appeal will be completely shut out.
Accordingly, the applicant's motion dated March 8, 2020, is merited and I accordingly allow the same in in terms of prayer 1 thereof.
The applicant will further file and serve the record of appeal within 60 days from the date of this ruling failure to which these orders shall stand vacated.
The costs of the motion shall abide the outcome of the intended appeal. Orders accordingly.
Issues in the judgment
#Motion dated March 8, 2020 predates the judgment of August 17, 2020 it seeks to appeal against; the court notes the error but does not resolve it.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kaloki v Independent Electoral and Boundaries Commission & 2 others", Case Analysis (2022). Civil Application E080 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1185/eng@2022-10-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.