East African Road Services v Nyanjui [1985] KECA 113 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a late appeal filing, saying a short, well-explained delay should not cost a party the right to appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether time should be extended under rule 4 of the Court of Appeal Rules to lodge the record of appeal
- 2.What is the cause of the delay and whether the explanation is acceptable
- 3.Whether the merits of the appeal and prejudice to the respondent bear on the application
Key legal issues
#Extension of time to lodge record of appeal under rule 4
Extension granted where delay is short, registry delay contributed, and no important question of merits or prejudice arises.
The court found the delay quite short and largely attributable to the Registrar's 49-day delay in sealing the decree. Counsel's misapprehension of the rules was excusable. The discretion under rule 4 is free and was exercised in favour of the party given the general picture of the appeal. The respondent conceded no appeal could not possibly arise.
Certificate of delay under proviso to rule 81
The certificate of delay concerns only time taken to obtain a copy of the proceedings, not time taken to have a decree sealed.
On a plain reading of the proviso to rule 81 (referred to as rule 8(a) in the ruling), the certificate covers delay in obtaining copies of proceedings. A decree is an original document made after delivery of copies, so the sealing delay could not be certified.
Duty of intending appellant regarding the decree
The appellant should have filed the record without the decree and used a supplementary record, or applied for extension before the sixty days expired.
Rule 85(2a) permits omitted documents to be filed in a supplementary record except the judgment or order specified in rule 85(1)(g). Counsel's failure to adopt a flexible approach contributed to the difficulty, though the registry's delay in sealing was the real cause of the trouble.
Legal principles established
#- The first consideration on an extension-of-time application is the reason for the delay; where the delay is short and excusable, the appellant should not be deprived of his right of appeal and the merits do not generally arise.
- Merits of the appeal and prejudice are secondary considerations, playing a part only in more extreme cases.
Court orders
#- 1.Application allowed with costs to the respondents in any event
- 2.Applicant to file and serve the record of appeal on or before August 20, 1985
- 3.Leave granted to apply in case of difficulty complying with the order
- 4.Notice to the parties of their right to refer the matter to the full court
- 5.Ruling to be supplied to both parties
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court
- Civil Case No 2887 of 1981
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time to lodge record of 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 first consideration is the reason for the delay, and where the delay is short, and the excuse for the delay acceptable, as a general rule the appellant should not be deprived of his right of appeal, and no question of the merits would arise, so long as the court has the general picture of what the appeal is about.
I regard the merits of the appeal and the question of prejudice as of secondary importance in these circumstances, because they would usually only play a part in the more extreme cases.
the application is allowed, and it was agreed that in that event, the costs should be the respondents’ costs in any event. The applicant will file and serve the records of appeal on or before August 20, 1985.
Further Order: Leave to apply in case of difficulty with complying with the court’s order. Notice to the parties of their right to refer this matter to the full court.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "East African Road Services v Nyanjui [1985] KECA 113 (KLR)", Case Analysis (1985). Civil Application No NAI 62 of 1985. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/113/eng@1985-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.