C.O. Okere v Esther Nduta Kiiyukia & 2 others [2010] KECA 127 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you can apply to extend appeal deadlines early — filing 'too soon' won't get your application thrown out.
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 applicant should be granted an extension of time to file and serve the memorandum and record of appeal
- 2.Whether the motion was incompetent and an abuse of the court's process because it was filed before the time for lodging the record of appeal had expired
Key legal issues
#Whether an extension-of-time motion filed before expiry of the period is incompetent
No; prematurity alone does not render the application incompetent, and by the time of the ruling the time had anyway expired, so Rule 4 applied
The 1st respondent argued the motion was unnecessary and abusive because the sixty-day period had not lapsed when it was filed. The court held that even if so, that would not by itself make the application incompetent. Moreover the period must have expired by the date of ruling, and Rule 4 expressly permits extension whether the application is made before or after the doing of the act. Striking out would only prolong litigation and increase costs, a situation section 3A of the Appellate Jurisdiction Act was intended to address.
Whether the delay of about twenty-six days in filing the motion was inordinate
The respondent did not contend the delay was inordinate, and the court did not base its decision on that aspect
Counsel for the 1st respondent did not submit that the twenty-six-day delay between receipt of the certificate of delay and lodgment of the motion was inordinate, so the court declined to decide the matter on that basis. The application was instead granted on consideration of all the surrounding circumstances, including the applicant's diligent prosecution of the appeal by filing the notice of appeal promptly and bespeaking proceedings.
Certification requirements for a record of appeal
Only the decree or order must be certified under Rule 85(1); other documents need not be certified
The applicant's advocate had requested a certified copy of the proceedings, which delayed their release. The court observed that certification of the proceedings is unnecessary for lodging an appeal; under Rule 85(1)(h) only a copy of the decree or order requires certification. This observation explained part of the timeline but was not the operative basis of the decision to extend time.
Legal principles established
#- The Court may extend time for doing an act under Rule 4 whether the application is made before or after the time for doing that act has expired; filing a premature extension application does not render it incompetent.
- Only a copy of the decree or order needs to be certified for purposes of lodging a record of appeal; other documents in the record need not be certified.
Court orders
#- 1.The applicant shall file his memorandum of appeal and the record of appeal within ten days of the date of the ruling
- 2.The applicant shall serve that record upon the respondents within seven days of its being lodged in the Court
- 3.Costs of the motion awarded to the 1st respondent in any event
- 4.No costs awarded to either the 2nd or 3rd respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules and section 3A of the Appellate Jurisdiction Act (inherent power)
Relief refused
#Costs to the 2nd and 3rd respondents
The 3rd respondent filed no papers and did not argue the motion
Costs
Costs of the motion awarded to the 1st respondent in any event; no costs to the 2nd or 3rd respondents.
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 accordingly order that the applicant shall file his memorandum of appeal and the record of appeal within ten days (10) of the date hereof.
I award the costs of the motion to the 1st respondent in any event.
But I do not think that would, by itself, render the application incompetent.
The only document which Rule 85 (1) requires to be certified is a copy of the decree or order – see Rule 85 (1) (h).
Issues in the judgment
#Two authorities relied on by the 1st respondent are referenced but not named in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "C.O. Okere v Esther Nduta Kiiyukia & 2 others [2010] KECA 127 (KLR)", Case Analysis (2010). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/127/eng@2010-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.