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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedNot stated in the judgment

C.O. Okere v Esther Nduta Kiiyukia & 2 others [2010] KECA 127 (KLR)

Court of Appeal of Kenya
30 July 2010
860 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi by Omolo, JA, on a motion under Rule 4 of the Court of Appeal Rules seeking extension of time to file and serve a memorandum and record of appeal. The applicant, Dr. C.O. Okere, lost before Rawal, J on 4th May 2007, filed a notice of appeal on 9th May 2007, and promptly bespeaking proceedings. The Deputy Registrar only intimated on 30th January 2009 that the proceedings were ready; the applicant paid fees on 24th February 2009 and obtained certified proceedings on 3rd March 2009, received a certificate of delay on 13th May 2009, and filed the motion on 9th June 2009. The 1st respondent argued the motion was incompetent and an abuse of process because, when filed, the sixty-day period had not expired. The court rejected that argument, holding that prematurity does not by itself render such an application incompetent, and that by the date of ruling the period had expired in any event, with Rule 4 permitting extension whether made before or after the doing of the act. The court also noted that striking out would only lengthen litigation and increase costs, a mischief section 3A of the Appellate Jurisdiction Act addresses. Time was extended: record to be filed within ten days and served within seven days thereafter. Costs of the motion were awarded to the 1st respondent in any event, with no costs to the 2nd and 3rd respondents. The intended appeal remains pending; the judgment below was not disturbed.

Questions the Court framed

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

  1. 1.Whether the applicant should be granted an extension of time to file and serve the memorandum and record of appeal
  2. 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

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01

Whether an extension-of-time motion filed before expiry of the period is incompetent

Holding

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

Reasoning

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.

p. 2
02

Whether the delay of about twenty-six days in filing the motion was inordinate

Holding

The respondent did not contend the delay was inordinate, and the court did not base its decision on that aspect

Reasoning

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.

p. 2
03

Certification requirements for a record of appeal

Holding

Only the decree or order must be certified under Rule 85(1); other documents need not be certified

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The applicant shall file his memorandum of appeal and the record of appeal within ten days of the date of the ruling
  2. 2.The applicant shall serve that record upon the respondents within seven days of its being lodged in the Court
  3. 3.Costs of the motion awarded to the 1st respondent in any event
  4. 4.No costs awarded to either the 2nd or 3rd respondents

The bench

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

majority

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

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Costs to the 2nd and 3rd respondents

The 3rd respondent filed no papers and did not argue the motion

p. 2

Costs

Costs of the motion awarded to the 1st respondent in any event; no costs to the 2nd or 3rd respondents.

Quotable passages

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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.
p. 2Final orders - extension of time granted
I award the costs of the motion to the 1st respondent in any event.
p. 2Final orders - costs
But I do not think that would, by itself, render the application incompetent.
p. 2Premature extension application not 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).
p. 2Certification requirements for record of appeal

Issues in the judgment

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minor

Two authorities relied on by the 1st respondent are referenced but not named in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.