KISYA INVESTMENTS LTD vs ATTORNEY GENERAL & R.L. ODUPOY [2000] KECA 60 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that no leave is needed to file a notice of appeal, but gave the appellants 30 days to lodge their record or lose the 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 the notice of appeal was null and void for having been filed out of time and before obtaining the mandatory requisite leave
- 2.Whether the respondents were dilatory in failing to lodge the record of appeal within the prescribed time, justifying striking out the notice of appeal
Key legal issues
#Whether leave is required before filing a notice of appeal
No; rule 74(4) of the Court of Appeal Rules provides that such leave is not essential before an intending appellant files a notice of appeal, so the ground that the notice was filed without leave was untenable.
The applicant argued the notice of appeal was null and void because it was filed out of time and before the mandatory leave was obtained. The court held the clear provisions of rule 74(4) disposed of this contention: the rule expressly enacts that leave is not essential before filing a notice of appeal. The notice, filed about fourteen days after the decision but excluding the date of the decision in the computation, was filed timeously.
Whether dilatory prosecution of the appeal warranted striking out the notice of appeal
The respondents were dilatory, having written only one or at most two reminders over eighteen months, but the court declined to strike out immediately, instead granting a conditional 30-day window to lodge and serve the record of appeal.
The court found the respondents did not do enough to secure copies of the proceedings and ruling, writing only one or two reminders despite repeated claims of registry delay and file movement. However, irregularities possibly committed in the court below, the discrepancy between the decretal sum of about Kshs.32 million and the over Kshs.200 million still claimed, and the involvement of public funds led the court to give the respondents a final chance rather than strike out the notice outright.
Legal principles established
#- Under rule 74(4) of the Court of Appeal Rules, leave is not a prerequisite to filing a notice of appeal.
- In computing the time within which to file a notice of appeal, the date of the decision appealed against is excluded.
- An intending appellant must actively pursue the necessary steps, including obtaining copies of proceedings; inaction by the registry does not excuse dilatory conduct.
Court orders
#- 1.The applicant's application to strike out the notice of appeal dated 7th July 1998 is disallowed
- 2.The respondents to lodge and serve their record of appeal within 30 days from the date of the ruling, failing which the notice of appeal dated 7th July 1998 shall stand struck out
- 3.The applicant shall have the costs of the application in any event
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Nairobi High Court Civil Case No. 2832 of 1990
- Jurisdiction invoked
- Inherent appellate jurisdiction under the Court of Appeal Rules (rule 74(4) in issue); application to strike out a notice of appeal filed in the court below
Relief refused
#Striking out of the respondents' notice of appeal dated 7th July 1998
The notice was filed timeously and leave was not required under rule 74(4); although the respondents were dilatory, the court gave a conditional order instead, given the irregularities and the colossal sums claimed
Costs
The applicant shall have the costs of this application in any event.
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 rule enacts that such leave is not essential before an intending appellant can file a notice of appeal.
The computation of the time within which to file a notice of appeal excludes the date of the decision against which an appeal is intended.
We however order that the respondents lodge and serve their record of appeal within 30 days from the date hereof, failing which their notice of appeal dated 7th July, 1998, will stand struck out.
The applicant shall have the costs of this application in any event.
Issues in the judgment
#The judgment contains internally inconsistent figures for the interest awarded under the original decree, stating 'Kshs.25,818,22.60' which does not reconcile with the stated total of Kshs.57,040,293.95 on a principal-based decree of Kshs.31,222,071.35.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "KISYA INVESTMENTS LTD vs ATTORNEY GENERAL & R.L. ODUPOY [2000] KECA 60 (KLR)", Case Analysis (2000). Civil Application No. NAI. 339 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/60/eng@2000-02-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.