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 AppealDismissedNot stated in the judgment

Karilus Odongo Mgeni v Toworo Industries Ltd [2002] KECA 134 (KLR)

Court of Appeal of Kenya
11 June 2002
RKR. O. Kwach
588 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal refused to rescue a late appeal, ruling that appeal notices don't expire on their own and strict deadlines apply.

What this practically means

#

Executive summary

#
The applicant, by his next friend, applied under rule 4 of the Court of Appeal Rules for extension of time to file and serve a Notice of Appeal and a Record of Appeal against a decision of Commissioner of Assize arap Birech delivered on 19th April 2001, which upheld a preliminary objection that the suit contravened Order XXXI rule 1(2) of the Civil Procedure Rules and struck the suit out. Leave to appeal was granted on 15th May 2001, on which day a notice of appeal was lodged but not served on the respondent as rule 76(1) required. Counsel argued that he could not file the notice before obtaining leave, but the court rejected this, holding that under rule 74(4) leave or a certificate need not be obtained before lodging a notice of appeal; the notice filed on 15th May 2001 was therefore out of time and without leave. The court nonetheless indicated it would have been inclined to exercise its discretion in the applicant's favour had that been the only obstacle. However, counsel also sought leave to lodge a fresh notice on the ground that the original had lapsed under rule 82(a). The court held that a notice of appeal cannot be deemed withdrawn under rule 82 except by an order of the Court, so the original notice remained extant and a second notice could not be permitted. Consequently there was no purpose in extending time for the record. The application was dismissed with costs of Shs.5,000/= payable by the applicant within 30 days, in default of which execution to issue.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court should extend time to file and serve the Notice of Appeal and the Record of Appeal
  2. 2.Whether a fresh notice of appeal could be lodged while the original notice of appeal remained extant

Key legal issues

#
01

Whether leave to appeal had to be obtained before lodging the notice of appeal

Holding

Leave was not a precondition to lodging the notice of appeal; the notice filed on 15th May 2001 was therefore out of time and without leave

Reasoning

Rule 74(2) required the notice of appeal within 14 days of the decision of 19th April 2001, i.e. by 3rd May 2001. Counsel argued leave was needed first, but rule 74(4) provides that where an appeal lies only with leave or on a certificate, it is unnecessary to obtain leave or the certificate before lodging the notice. The submission was rejected and the notice was out of time.

p. 2
02

Whether a fresh notice of appeal could be lodged after the original had lapsed under rule 82

Holding

The original notice of appeal had not lapsed because it could only be deemed withdrawn by a court order; it remained extant, so no second notice could be permitted

Reasoning

Counsel contended the notice lodged on 15th May 2001 had lapsed under rule 82(a). The court held that a notice of appeal cannot be deemed withdrawn under rule 82 except by an order of the Court. The notice filed was therefore still in existence, and leave could not be granted to file a second notice while the first subsisted.

p. 2

Legal principles established

#
  • Where an appeal lies only with leave or on a certificate, it is not necessary to obtain leave or the certificate before lodging a notice of appeal
  • A notice of appeal can only be deemed withdrawn under rule 82 by an order of the Court; until such an order it remains extant

Court orders

#
  1. 1.The application for extension of time was dismissed
  2. 2.Costs assessed at Shs.5,000/= to be paid by the applicant within 30 days, and in default execution to issue

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

RK
majority

Wrote the judgment

On appeal from
High Court of Kenya (Commissioner of Assize)
Not stated in the judgment
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time)

Relief refused

#

Extension of time to file and serve the Notice of Appeal

The applicant could not be given leave to file a second notice of appeal while the first notice remained in existence

p. 2

Extension of time to lodge the Record of Appeal

Having refused extension for a fresh notice of appeal, there was no purpose in extending time for the record

p. 2

Costs

Application dismissed with costs assessed at Shs.5,000/= to be paid by the applicant within 30 days and in default execution to issue

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.

under rule 74(4) of the Rules when an appeal lies only with leave or on a certificate that a point of law of general public importance is involved, it shall not be necessary to obtain such leave or certificate before lodging the notice of appeal.
p. 2No need to obtain leave before lodging notice of appeal
As I understand the law a notice of appeal cannot be deemed to have been withdrawn under rule 82 except by the order of the Court to that effect.
p. 2Withdrawal of notice of appeal requires a court order
In the circumstances I have no alternative but to dismiss this application with costs assessed at Shs.5,000/= to be paid by the applicant within 30 days and in default execution to issue.
p. 2Final orders - dismissal and costs

Issues in the judgment

#
minor

The judgment refers inconsistently to the date of the notice of appeal, stating it was filed on 15th May 2001 in one passage and on 15th April 2001 in another

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Karilus Odongo Mgeni v Toworo Industries Ltd [2002] KECA 134 (KLR)", Case Analysis (2002). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/134/eng@2002-06-11

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