Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealOtherCivil Application (ruling delivered 5th November 1997, Nairobi)· [1997] KECA 18 (KLR)

Gabriel Kigi & 6 others v Kimotho Mwaura & another [1997] KECA 18 (KLR)

Court of Appeal of Kenya
5 November 1997
ASA.B. Shah
3,342 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed that a single judge can directly grant extensions of time to appeal, without first going to the High Court.

What this practically means

#

Executive summary

#
This is a ruling by Shah, JA, sitting as a single judge of the Court of Appeal at Nairobi, on a preliminary objection raised by the respondents to the Court's jurisdiction to entertain an application for extension of time to file a notice of appeal and record of appeal. Counsel for the respondents, relying on the Chief Justice's recent ruling in Afro Meat Company Limited v Syprose Ageke Owuor, argued that rule 4 of the Court of Appeal Rules is subservient to section 7 of the Appellate Jurisdiction Act and that such applications must in the first instance be made to the High Court. Counsel for the applicant relied on Bosire, Ag JA's decision in Robinson & Others v Muthami. Shah, JA traced over forty years of authority from the Court of Appeal for Eastern Africa onwards, including Harnam Singh Bhogal v Jadwa Karsan, Ngoni Matengo Co-operative Marketing Union Ltd v Osman, and Belinda Murai v Wainaina, holding that a single judge of the Court has always had jurisdiction to extend time and readmit struck-out appeals. He reasoned that since only rule 74(2) of the Rules prescribes the time for filing a notice of appeal, that time can properly be extended under rule 4, and section 7 of the Act applies only where there is as yet nothing before the Court of Appeal. Bound by stare decisis, he declined to follow Afro Meat Company and distinguished G.S. Suri v Royal Credit Ltd. He further held that after a record of appeal is struck out, the original notice of appeal is not deemed withdrawn and refiling a fresh notice is superfluous. The preliminary objection was dismissed with costs to the applicant, and the application was directed to proceed on its merits, with liberty to refer the jurisdictional issue to the full Court under rule 54.

Key legal issues

#
01

Whether the Court of Appeal has jurisdiction under rule 4 to extend time for filing a notice of appeal and record of appeal in the first instance

Holding

Yes. Rule 4 is not subservient to section 7 of the Appellate Jurisdiction Act; since the time for filing a notice of appeal is prescribed by rule 74(2) of the Rules, that time can properly be extended under rule 4, and rule 41 does not bar such an application to this Court in the first instance.

Reasoning

Neither the Civil Procedure Act nor the Appellate Jurisdiction Act prescribes a 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 by reference to rule 4. The High Court's discretion under section 7 (which uses 'may') cannot override this. Forty years of decisions of the final appellate courts in East Africa and Kenya, binding under stare decisis, support this jurisdiction.

p. 3
02

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

Holding

A struck-out appeal may be refilled on its original record supplemented by a copy of the formal order and new or further grounds; the original notice of appeal remains on the record and a fresh notice is superfluous. Rule 82(a) does not apply to appeals struck out.

Reasoning

On striking out of a record of appeal for technical reasons the appellant is not manifesting an intention to abandon the right of appeal; the appellant typically promptly files an application for extension of time, showing the original notice of appeal is still intended to stand. Rule 82(a) deems a notice withdrawn only where a party fails to institute an appeal within the appointed time, and cannot apply to appeals struck out.

p. 5
03

Whether the Court should follow the Chief Justice's ruling in Afro Meat Company or the long line of precedent

Holding

The Court declined to follow Afro Meat Company, holding itself bound by the doctrine of stare decisis to the 40-year line of authority conferring jurisdiction on a single judge of the Court.

Reasoning

The judge regarded the task as formidable but concluded that what has been good for the past 40 years is still good today, since section 7 of the Act and its equivalent have existed for many years and would have been raised earlier if it barred such applications. He also agreed with Bosire Ag JA in Robinson & Others v Muthami that section 7 applies where there is as yet nothing before the Court of Appeal.

p. 3

Legal principles established

#
  • 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, or to readmit a struck-out appeal, in the first instance; rule 41 does not bar such an application to the Court of Appeal.
  • Section 7 of the Appellate Jurisdiction Act gives the High Court discretionary power to extend time only where there is as yet nothing before the Court of Appeal; it does not oust the Court of Appeal's jurisdiction under rule 4.
  • 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 is superfluous, being a matter of abundant caution.

Court orders

#
  1. 1.The preliminary objection to the jurisdiction of the Court to grant extension of time 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

#

Legislation

  • Appellate Jurisdiction Act (Cap 9), Laws of Kenyasection 7
  • 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 82(a)
  • Court of Appeal Rulesrule 76(2)
  • Court of Appeal Rulesrule 5(2)(b)
  • Civil Procedure Act
  • 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) and rule 74(2) of the Court of Appeal Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Gabriel Kigi & 6 others v Kimotho Mwaura & another [1997] KECA 18 (KLR)", Case Analysis (1997). Civil Application (ruling delivered 5th November 1997, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/18/eng@1997-11-05

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