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Court of AppealDismissedCivil Application E264 of 2020· [2022] KECA 1243 (KLR)

Kimani v Kamau

Court of Appeal
4 November 2022
FSF Sichalet
733 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to extend time to appeal because the applicant couldn't prove which decision he was actually appealing against.

What this practically means

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Executive summary

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This is a ruling by a single judge of the Court of Appeal (F Sichalet, JA) on an application for extension of time, arising from a prior ruling of the court dated November 5, 2021 in which Kantai, Nyamweya and Lesiit JJ.A granted a stay of execution of a ruling of Okong'o J in ELC No. 1068 of 2007 and directed that the pending application for leave to appeal out of time be placed before a single judge. The applicant, Alphonce Kamau Kimani, sought leave to file an appeal out of time against a judgment he stated was dated November 30, 2003. Sichalet JA identified serious discrepancies in the record: the annexed Notice of Appeal referred to a ruling delivered on June 26, 2019, the annexed ruling was dated July 30, 2020 (while the earlier stay application described it as July 31, 2020), and there was no evidence of the deposed request for certified copies of proceedings - the document marked BG-3 was from Kenya Law and not a request for proceedings. Holding that it would be dangerous to speculate or assume the date of the impugned judgment, the court declined to grant leave to file the appeal out of time as sought and made no order as to costs. The decision below was not disturbed; the application simply failed on its own material. No authorities were cited.

Key legal issues

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01

Extension of time to file an appeal where the impugned decision is uncertain

Holding

The application was refused because the material disclosed three different dates for the impugned decision and no evidence of a request for certified proceedings, leaving the court unable to grant the order sought.

Reasoning

The applicant sought leave to appeal a judgment said to be dated November 30, 2003, but the Notice of Appeal referred to a ruling of June 26, 2019, while the annexed ruling was dated July 30, 2020. The court held it could not speculate on the correct date. The deposed request for certified copies was unsupported; the document marked BG-3 was from Kenya Law, not a request for proceedings.

p. 2

Legal principles established

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  • A single judge of the Court of Appeal may decline an application for extension of time where the date and identity of the decision sought to be appealed cannot be established from the material before the court.

Court orders

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  1. 1.The court declines to grant the applicant leave to file an appeal out of time against the judgment dated November 30, 2003 as sought
  2. 2.No order as to costs
On appeal from
High Court of Kenya at Nairobi
ELC No. 1068 of 2007
Jurisdiction invoked
Rules 4, 5(2)(b), 31 and 42 of the Court of Appeal Rules, 2010 (single judge jurisdiction under Rule 4)

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, "Kimani v Kamau", Case Analysis (2022). Civil Application E264 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1243/eng@2022-11-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.