KISYA INVESTMENTS LTD vs ATTORNEY GENERAL & R. L. ODUPOY [2000] KECA 133 (KLR)
The bottom line
#Kenya's Court of Appeal refused to kill a delayed appeal but gave the appellants 30 days to file it or lose it automatically.
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 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 a prerequisite to filing a notice of appeal
No; under rule 74(4) of the Court of Appeal Rules leave is not essential before filing 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 before the respondents obtained mandatory leave. The court held that rule 74(4) expressly removes any such requirement, so the notice filed on 9th July 1998 was properly on record. The court also found the notice was filed timeously, time being computed exclusive of the date of the decision.
Whether dilatory prosecution of an intended appeal warrants striking out the notice of appeal
The respondents were dilatory, having sent only one or two reminders over eighteen months, but the court declined to strike out the notice, instead granting a conditional 30-day period to lodge 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 at most two reminders to the registry. However, issues raised about possible irregularity in the court below, the colossal sum of over Kshs.200 million still claimed against a decretal sum of about Kshs.32 million, and the involvement of public funds led the court to disallow the application subject to a conditional order.
Legal principles established
#- Leave is not required before an intending appellant files a notice of appeal under rule 74(4) of the Court of Appeal Rules
- In computing the time within which to file a notice of appeal, the date of the decision appealed against is excluded
Court orders
#- 1.The applicant's application to strike out the notice of appeal 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
- H.C.C.C. No. 2832 of 1990
- Jurisdiction invoked
- Intended appeal from the High Court under the Court of Appeal Rules (application to strike out a notice of appeal)
Relief refused
#Striking out of the respondents' notice of appeal dated 7th July 1998
Although the respondents were dilatory, irregularities raised below and the involvement of public funds inclined the court against striking out; instead a conditional order was made
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 decree, stating 'Kshs.25,818,22.60' which does not reconcile with the stated total of Kshs.57,040,293.95 against a principal-derived decretal sum of about Kshs.31 million
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 133 (KLR)", Case Analysis (2000). Civil Application No. NAI. 339 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/133/eng@2000-02-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.