John Gitau Karogo Anwarali Brothers Limited v Paul Khaemba
The bottom line
#Kenya's Court of Appeal excused an eight-day late appeal filing, holding short delays not caused by the appellant should not defeat the right to appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether a notice of appeal lodged eight days out of time should be deemed duly lodged
Yes. The application was allowed and the notice of appeal lodged on 28th August 2001 was deemed lodged in time.
The judgment sought to be appealed was not delivered on the notified date of 3rd August 2001, and in the absence of a replying affidavit the court had no reason to believe the applicants' advocates knew of the new delivery date. Although the advocates had the judgment's main contents by 14th August 2001 and could have lodged the notice by 20th August 2001, the eight-day delay was not inordinate, the right of appeal was undoubted, and the delay was not the applicants' fault.
Within what period the record of appeal should be lodged where a copy of proceedings has not been availed
The record of appeal is to be lodged within 60 days after the applicants' advocates receive the copy of proceedings.
Having validated the notice of appeal, the court fixed a realistic deadline for filing the record. Because no copy of proceedings had been supplied to the applicants, the 60-day period was made to run from receipt of that copy by the applicants' advocates rather than from the date of the notice of appeal. This avoids penalising the applicants for a delay not of their making while still imposing a defined deadline for prosecuting the appeal.
Legal principles established
#- An eight-day delay in lodging a notice of appeal is not inordinate where the judgment was not delivered on the notified date and the delay is not the applicant's fault; such a delay does not disentitle an applicant from exercising an undoubted right of appeal. As a Court of Appeal ruling, this binds lower courts and tribunals.
- Where a copy of proceedings has not been availed to an intending appellant, the period for lodging the record of appeal runs from the appellant's advocates' receipt of that copy.
Court orders
#- 1.The notice of appeal lodged on 28th August, 2001 is deemed to be lodged in time
- 2.The record of appeal to be lodged within 60 days after receipt by the applicants' advocates of the copy of proceedings
- 3.No order as to costs
- Jurisdiction invoked
- Not stated in the judgment; the matter was an application to validate a notice of appeal lodged out of time in an intended appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Gitau Karogo Anwarali Brothers Limited v Paul Khaemba", Case Analysis (2002). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/61/eng@2002-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.