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Court of AppealOtherNot stated in the judgment· [1997] KECA 12 (KLR)

Gabriel Kigi Joseph Muhinja Jane Njeri Eunice Gathega Patrick Ndungu Patrick Ndichu Kimani Daniel Kinyanjui Kae v Kimotho Mwaura Lisura Farm (kin Estate)

Court of Appeal of Kenya
5 November 1997
ASA.B. Shah
0 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed it can extend appeal filing deadlines directly, so you don't have to first ask the High Court for permission.

What this practically means

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Executive summary

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This is an unreported ruling by Shah, JA, sitting as a single judge of the Court of Appeal at Nairobi, delivered on 5th November 1997 on a preliminary objection raised by Mr Balala for the respondents. The objection was that the Court of Appeal lacked jurisdiction, under rule 4 of the Court of Appeal Rules, to grant extension of time to file a notice of appeal and record of appeal, because rule 4 was said to be subservient to section 7 of the Appellate Jurisdiction Act and rule 41 required such applications to be made in the first instance to the High Court, relying on the Chief Justice's recent ruling in Afro Meat Company Limited v Syprose Ageke Owuor. Counsel for the applicant relied on the contrary single-judge decision in Robinson & Others v Muthami by Bosire, Ag. JA. Shah, JA traced over forty years of decisions of the Court of Appeal for Eastern Africa, the Court of Appeal for East Africa and the Kenyan Court of Appeal - including Harnam Singh Bhogal v Jadwa Karsan, Ngoni Matengo Co-operative Marketing Union Ltd v Osman, and Belinda Murai v Wainaina (confirmed by a full court of Madan, Wambuzi and Miller Ag. JJ.A) - establishing that a single judge of the Court has jurisdiction to extend time and to readmit a struck-out appeal. Bound by stare decisis, he held that since only rule 74(2) of the Rules prescribes the time for filing a notice of appeal, that time is properly extendable under rule 4, and section 7 confers a discretion on the High Court only where nothing is yet before the Court of Appeal. He respectfully disagreed with the Afro Meat Company ruling, distinguished G.S. Suri v Royal Credit Ltd, and held that a fresh notice of appeal after a record of appeal is struck out is superfluous, the original notice not being deemed withdrawn under rule 82(a). The preliminary objection was dismissed with costs to the applicant in any event, and the application was set down for hearing on the merits.

Key legal issues

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01

Whether the Court of Appeal has jurisdiction under rule 4 to extend time to file a notice of appeal and record of appeal notwithstanding section 7 of the Appellate Jurisdiction Act and rule 41 of the Rules

Holding

The Court of Appeal has jurisdiction; the preliminary objection fails. Section 7 gives the High Court a discretion where nothing is yet before the Court of Appeal, but rule 4 governs extension of the time prescribed by rule 74(2), and rule 41 does not bar the application to this Court in the first instance.

Reasoning

The Civil Procedure Act and the Appellate Jurisdiction Act prescribe no specific time for filing a notice of appeal; only rule 74(2) of the Court of Appeal Rules does so. It follows that the time so prescribed can be extended under rule 4. Forty years of decisions of the Court of Appeal for Eastern Africa, the Court of Appeal for East Africa and this Court, including Belinda Murai (confirmed by a full court), support this jurisdiction. Bound by stare decisis, the judge declined to follow the contrary single-judge ruling in Afro Meat Company. Section 7 applies only where there is as yet nothing before this Court.

p. 3
02

The effect of striking out an appeal on the original notice of appeal

Holding

On striking out of a record of appeal, the appellant is not manifesting an intention to abandon the right of appeal; the original notice of appeal remains on the record in the superior court, rule 82(a) does not apply, and refiling a fresh notice of appeal is superfluous, done only ex abundanti cautela.

Reasoning

Rule 82(a) deems a notice of appeal withdrawn only where a party fails to institute an appeal within the appointed time; it does not apply to appeals struck out. An appellant who promptly files an application for enlargement of time makes clear the original notice of appeal is still intended to stand. This reasoning expressly departs from the Chief Justice's view in Afro Meat Company that a fresh intention to appeal must be manifested afresh.

p. 5

Legal principles established

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  • A single judge of the Court of Appeal has jurisdiction under rule 4 of the Court of Appeal Rules to entertain and allow an application for extension of time to file a notice of appeal and record of appeal, including to readmit an appeal struck out; such an application need not first be made to the High Court.
  • Section 7 of the Appellate Jurisdiction Act confers a discretionary power on the High Court to extend time where nothing is yet before the Court of Appeal, but it does not oust the Court of Appeal's jurisdiction under rule 4.
  • The time for filing a notice of appeal is prescribed by rule 74(2) of the Court of Appeal Rules, and that prescribed time can properly be extended by an application grounded on rule 4 of the Rules; rule 41 does not bar such an application to the Court of Appeal in the first instance.
  • Upon striking out of a record of appeal for technical reasons, the appellant is on a different footing from one filing a notice of appeal out of time for the first time; the original notice of appeal is not deemed withdrawn and refiling a fresh notice of appeal is superfluous, being a matter of abundant caution.

Court orders

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  1. 1.The preliminary objection to the jurisdiction of the Court is dismissed
  2. 2.The application is to proceed to be heard on its merits
  3. 3.Costs occasioned by the preliminary objection are the applicant's in any event

Authorities

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Legislation

  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrule 41
  • Court of Appeal Rulesrule 74(2)
  • Court of Appeal Rulesrule 54
  • Court of Appeal Rulesrule 76(2)
  • Court of Appeal Rulesrule 82(a)
  • Appellate Jurisdiction Act (Cap 9)section 7
  • Civil Procedure Actnot specified
  • Civil Procedure RulesOrder 41 rule 4(1)
  • Appellate Jurisdiction Act, 1963section 10
  • E.A.C.A Rulesrule 9(1)

Cases cited (8)

  • Afro Meat Company Limited v Syprose Ageke Owuor
    Civil Application No NAI 95 of 1997 (unreported)
  • Robinson & Others v Muthami
    Civil Application No NAI 187 of 1997 (78/97 UR) (unreported)
  • Ngoni Matengo Co-operative Marketing Union Ltd v Osman
    [1959] E.A. 577
  • Elizabeth Kamene Ndolo v George Matata Ndolo
    Civil Application No NAI 104 of 1995 (unreported)
  • Harnam Singh Bhogal v Jadwa Karsan
    [1953] 20 E.A.C.A
  • Belinda Murai (widow of Ignatius Mura) & Others v Amos Wainaina
    Civil Application No NAI 9 of 1978 (unreported)
  • G.S. Suri & Anor v Royal Credit Ltd
    Civil Application No NAI 281 of 1995 (unreported)
  • Jean Pierre De-Leu v Adrian Muteshi
    Civil Application No NAI 169 of 1995 (unreported)
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, read with section 7 of the Appellate Jurisdiction Act (Cap 9)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Gabriel Kigi Joseph Muhinja Jane Njeri Eunice Gathega Patrick Ndungu Patrick Ndichu Kimani Daniel Kinyanjui Kae v Kimotho Mwaura Lisura Farm (kin Estate)", Case Analysis (1997). Not stated in the judgment. Source:

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