Attorney General v Simon Quiggrey Ogila [2000] KECA 178 (KLR)
The bottom line
#Kenya's Court of Appeal gave the Attorney General a second chance to appeal after a judge wrongly decided a review on a mention date.
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 delay in lodging the application for extension of time was inordinate.
- 2.Whether the applicant should be granted leave to file fresh notices of appeal and records of appeal against (a) the order made on 14 October 1997 reviewing the judgment in H.C.C.C. No. 4218 of 1990 and (b) the ruling of Sheikh Amin J delivered on 14 April 1999, following the withdrawal of consolidated Civil Appeals Nos. 83 and 140 of 1999.
Key legal issues
#Whether the delay in lodging the application for extension of time was inordinate.
The delay was not inordinate. Part of it was caused by the superior court registry, which took time over drawing a correct formal order - an order that even then remained incorrect - and substantial review orders having been made on a mention date, justice required that the applicant be given a chance to lodge fresh appeals.
The application was filed on 16 August 2000, after the two consolidated appeals were withdrawn on 24 May 2000. The court found the overall delay not so inordinate as to deny the applicant a chance to lodge a fresh appeal, attributing part of the delay to the superior court registry's slowness in drawing the formal order. The irregularity of the review proceedings weighed decisively: the matter 'cries out loud for justice'. Extension was therefore granted for both intended appeals, with filing deadlines set in January and February 2001.
Whether the review proceedings before Aluoch J on 14 October 1997 complied with the Civil Procedure Rules.
They did not. The application had been listed for mention, yet the judge proceeded to hear and allow it on that date, and the requirements of Order 44 rule 6 of the Civil Procedure Rules were ignored totally; the decree subsequently drawn by the respondent contained figures found nowhere in the ruling on review.
The typed proceedings showed that on 8 October 1997 the application was stood over to 14 October 1997 for mention. On that date the Attorney General's representative, though served with the mention notice, did not appear, and the judge heard and allowed the review. The court treated these irregularities, together with a decree whose figures matched nothing in the ruling, as grounds making it just to extend time for a fresh challenge to the review order.
The duty of the Deputy Registrar when approving a draft decree that was not challenged in time.
A draft decree must accord with the judgment or ruling even where the party asked to approve it did not challenge it in time; the Deputy Registrar called upon to approve it is duty bound to ensure that it does.
Aluoch J had declined on 1 October 1998 to interfere with the decree as drawn by the respondent, on the basis that the Attorney General had not objected to it in time. The court disagreed with the implication of that approach, stating as a matter of general principle that approval of a draft decree is not a rubber stamp: conformity with the decision as pronounced is mandatory irrespective of late or absent objection.
Legal principles established
#- A draft decree submitted for approval must accord with the judgment or ruling even if the party asked to approve it did not challenge it in time; the Deputy Registrar called upon to approve it is duty bound to ensure that it does.
- The requirements of Order 44 rule 6 of the Civil Procedure Rules governing review applications are mandatory; a review application cannot properly be heard and determined on a date listed only for mention.
- Where the delay in seeking leave to appeal is not inordinate - particularly where it is partly attributable to the registry and substantial orders were made irregularly - the court will extend time to enable a fresh appeal to be lodged.
Court orders
#- 1.Extension of time granted to the applicant to file a fresh notice of appeal against the order of the superior court made on 14/10/97; such notice to be filed by 14 January 2001.
- 2.Record of appeal against the order of 14/10/97 to be lodged by 14 February 2001.
- 3.Extension of time granted to lodge a fresh notice of appeal against the ruling of Sheikh Amin J delivered on 14 April 1999; such notice to be filed by 14 January 2001.
- 4.Record of appeal against the ruling of 14 April 1999 to be filed by 14 February 2001.
- 5.Respondent awarded the costs of preparing his affidavit in reply plus his reasonable out-of-pocket expenses, assessed altogether at Shs.3,000/=, to be paid within 30 days failing which execution may issue.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya
- H.C.C.C. No. 4218 of 1990
- Jurisdiction invoked
- Rules 7, 17, 20 and 42 of the Rules of this Court (Court of Appeal Rules)
- Consolidated with
- Civil Appeal No. 83 of 1999, Civil Appeal No. 140 of 1999
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.
I therefore grant orders to the applicant to file a fresh notice of appeal against the order of the superior court made on 14/10/97. Such notice of appeal must be filed by 14/1/01. The record of appeal must thereafter be lodged by 14/2/01.
I extend the time to lodge a fresh notice of appeal against the Ruling of Sheikh Amin J delivered on 14th April, 1999. That notice of appeal must be filed by 14th January, 2001 and the record of appeal must be filed by 14th February, 2001.
The respondent will have costs of preparing his affidavit in reply to the application plus his reasonable out of pockets which I assess altogether at Shs.3,000/=. This sum must be paid to the respondent within the next 30 days failing which execution may issue.
even if a draft decree/order is not challenged in time by the party asked to approve the same, it must accord with the judgment/ruling and the Deputy Registrar who is called upon to approve the same is duty bound to see to that.
Once again I am of the view that the overall delay in bringing up this application is not so inordinate as to deny the applicant a chance to lodge a fresh appeal.
Issues in the judgment
#The notice of motion for review bears irreconcilable dates: it is dated 16th July, 1997 yet seeks review of a decree stated to have been delivered on 14th October, 1997; the court presumes the latter date should read 14/10/95.
The respondent's surname is spelled inconsistently within the judgment, appearing as both 'Ogila' and 'Ogilla'.
The formal order extracted by the superior court registry still bore wrong dates even after being redrawn, leaving the record in an unsatisfactory state.
The original superior court file could not be located despite searches, so the true date of lodgment of the review notice of motion could not be verified.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Attorney General v Simon Quiggrey Ogila [2000] KECA 178 (KLR)", Case Analysis (2000). Application number not stated in the judgment (arising from withdrawn consolidated Civil Appeals Nos. 83 of 1999 and 140 of 1999). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/178/eng@2000-12-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.