Mehrunnissa v Mohamed Parvez [1979] KECA 10 (KLR)
The bottom line
#Kenya's Court of Appeal granted extra time to appeal when the court registry's own delay caused the missed deadline.
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 time for lodging an appeal should be extended under rule 4 of the Court of Appeal Rules
- 2.Whether compliance with the proviso to rule 81 (obtaining a certificate of delay) is a prerequisite to invoking rule 4
- 3.Whether the applicant's failure to state the nature of the ruling and grounds of appeal defeats the application where the delay was wholly the court's fault
Key legal issues
#Whether the proviso to rule 81 must be exhausted before an extension of time can be sought under rule 4
No. Rule 81's proviso is not mandatory in every case of delay; rule 4 remains available, though the applicant must then show sufficient reason.
Counsel for the respondent argued that the proviso to rule 81 (certificate of delay) had to be satisfied before rule 4 could be engaged. The court rejected this, holding that rule 81 is not worded to require an intending appellant in every case of delay to obtain a certificate of delay; the alternative route under rule 4 remains open, carrying the burden of showing sufficient reason and the risk of failure.
Whether the applicant's failure to disclose the ruling and grounds of appeal barred the extension
Although non-compliance with the general practice would ordinarily weigh against an applicant, the court retained discretion to extend time where the delay was entirely the court's own fault.
The applicant gave no information about the ruling or grounds of appeal, contrary to the practice in Bhaichand Bhagwanji Shah. However, following Balwantrai D Bhatt, that failure does not remove the court's discretion where the delay is wholly attributable to the courts. Here the registrar's delay in supplying proceedings caused the entire delay, so the discretion was exercised in the applicant's favour.
Legal principles established
#- An intending appellant who does not obtain a certificate of delay under the proviso to rule 81 may still apply for an extension of time under rule 4, but must show sufficient reason
- Failure to state the nature of the decision and grounds of appeal does not deprive the court of its discretion to extend time where the delay is entirely attributable to the courts
- An applicant for extension of time should support the application with a sufficient statement of the nature of the judgment and reasons for desiring to appeal
Court orders
#- 1.Time for lodging the appeal extended by forty days from the date of the order
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court
- 927 of 1977
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time for lodging an 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.
In the exercise of my discretion I order that the time for lodging the appeal in this case be extended by forty days from today.
Accordingly the costs of this application will be the respondent’s in any event.
If the intending appellant does not do so, he may still apply for an extension of time under rule 4; but he will then have to show “sufficient reason”. And he runs the risk of failure.
Issues in the judgment
#The judgment does not state the names of the parties or the Court of Appeal case number; it is identified only by reference to the High Court civil suit from which the appeal arises.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mehrunnissa v Mohamed Parvez [1979] KECA 10 (KLR)", Case Analysis (1979). Civil Suit 927 of 1977 (High Court ruling appealed). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1979/10/eng@1979-07-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.