Kimaru v Rukungu [1984] KECA 52 (KLR)
The bottom line
#Kenya's Court of Appeal gave a late appellant a second chance, but warned that lawyers who fail to serve appeal documents do so at their own risk.
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 service of the notice of appeal should be extended under rule 4 given lack of evidence of service as required by rule 76(1)
- 2.Whether the time for instituting the appeal under rule 81(1) should be extended despite the delay and the absence of a certificate of delay
- 3.Whether the applicant could rely on the proviso to rule 81(1) via a certificate of delay
Key legal issues
#Extension of time to serve the notice of appeal
Extension of time to institute the appeal necessarily includes extension of time to serve the notice of appeal, since service was not proved as rule 76(1) requires.
The notice of appeal was filed within time but the applicant's advocate could not produce evidence of service on the respondent's advocate as required by rule 76(1). The court held that the application to extend time for instituting the appeal under rule 81(1) must therefore also cover service of the notice. Leave to serve out of time was granted with a deadline of April 2, 1984.
Availability of the certificate of delay proviso
The applicant could not rely on the proviso to rule 81(1) because no copy of the request for certified proceedings was sent to the respondent or his advocate, as rule 81(2) expressly requires.
Although proceedings were delayed by corrections the judge had to make, the applicant never sent a copy of the request for proceedings to the respondent. Under the express terms of rule 81(2), the proviso to sub-rule (1) was therefore unavailable and any certificate of delay would have been of no avail, leaving the applicant to the general discretion under rule 4.
Exercise of the rule 4 discretion despite delay
Despite demonstrable laxity and delay by the applicant, the discretion was exercised in his favour because courts are unwilling to deprive a litigant of the right to be heard on appeal and there was delay in compiling the High Court record.
The respondent argued the applicant's laxity should disqualify him from indulgence. The court acknowledged the criticism and the unexplained delay since April, but noted delay in compilation of the record and the applicant advocate's distance from Nairobi. Describing it as a borderline case, the court extended time on both counts, while warning intending appellants who fail to serve documents that they do so at their peril.
Legal principles established
#- An application to extend time for instituting an appeal under rule 81(1) must include an extension of time to serve the notice of appeal where service was not effected as required by rule 76(1).
- A litigant who fails to serve the notice of appeal, or to send a copy of the request for certified proceedings, to the other side does so at their peril.
- An applicant for extension of time must state the nature of the case and reasons for desiring to appeal, so the court can determine whether refusal would cause injustice.
Court orders
#- 1.Leave granted to serve the notice of appeal out of time, to be done by April 2, 1984
- 2.Leave granted to institute the appeal out of time, to be done by April 9, 1984
- 3.In default of any of these conditions the application shall stand dismissed
- 4.Request that the Registrar consider bringing the remarks to the attention of the Law Society for the assistance of practitioners
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya
- Originating summons filed January 10, 1979
- Jurisdiction invoked
- Rule 4 of this Court's Rules (discretion to extend time); rules 76(1) and 81(1)-(2)
Relief refused
#Reliance on the proviso to rule 81(1) via a certificate of delay
No copy of the request for proceedings was sent to the respondent or his advocate, so the proviso was unavailable under rule 81(2)
Costs
No costs order made in the judgment.
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 result, I grant leave to serve the notice of appeal out of time and direct that it shall be done by April 2, 1984. I also grant leave to institute the appeal out of time and direct that that shall be done by April 9, 1984.
In default of any of these conditions this application shall stand dismissed.
I would again emphasise that intending appellants who fail to serve their notice of appeal, or fail to send a copy of their request for the certified proceedings, on or to the other side, do so at their peril.
The fact remains, however, that the courts are unwilling to deprive a litigant of his right to be heard on an appeal, even though he has had a full, and, I may add, a patient, hearing in the High Court.
Issues in the judgment
#The delivery date line contains a duplicated date expression
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimaru v Rukungu [1984] KECA 52 (KLR)", Case Analysis (1984). Civil Appeal 50 of 1982 (application arising from High Court originating summons filed January 10, 1979). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/52/eng@1984-03-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.