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Court of AppealPartially AllowedCivil Application E080 of 2021· [2022] KECA 1185 (KLR)

Kaloki v Independent Electoral and Boundaries Commission & 2 others

Court of Appeal
21 October 2022
951 words in judgment
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The bottom line

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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 (Sichale, JA) on a motion under rule 4 of the Court of Appeal Rules seeking extension of time to file and serve a notice of appeal out of time against the judgment of Nyamweya, J delivered on August 17, 2020 in Nairobi High Court JR Misc Appl No. 592 of 2017. The applicant, Professor Philip Kaloki, explained that the judgment was delivered by email on August 17, 2020 and received by his advocates on August 21, 2020; his advocates promptly requested certified copies by email in line with the court's directives, but were later told on August 31, 2020 - the very deadline for filing the notice of appeal - that requests had to go through the newly introduced e-filing system instead. The court applied the Fakir Mohamed principles (length and cause of delay, chances of success, and prejudice). It found the delay plausibly explained, as the varying directives of the superior court were beyond the applicant's control; it declined to make any definitive finding on the merits to avoid embarrassing the full bench; and it found the applicant would be prejudiced by being shut out of his right of appeal, the respondents having filed no reply or submissions. The motion was allowed in terms of prayer 1, with the record of appeal to be filed and served within 60 days failing which the orders would stand vacated, and costs of the motion to abide the outcome of the intended appeal. The respondents did not participate.

Key legal issues

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01

Extension of time to file notice of appeal under rule 4

Holding

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.

Reasoning

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.

02

Chances of success of the intended appeal

Holding

No definitive finding was made; the single judge declined to comment further to avoid embarrassing the full bench.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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. 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. 3.Costs of the motion to abide the outcome of the intended appeal
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)

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, "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.