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Court of AppealAllowedKisumu HCA No. 18 of 2008 (application under Rule 4 of the Court of Appeal Rules)· [2015] KECA 42 (KLR)

Hermant Kamal Raval v Jubilee Jumbo Hardware Ltd [2015] KECA 42 (KLR)

Court of Appeal of Kenya
19 March 2015
David Kenani MaragaD.K. Maraga
597 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal granted a lawyer permission to appeal late because he genuinely didn't know judgment had been delivered.

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 Kisumu by Maraga, JA on an application under Rule 4 of the Court of Appeal Rules for leave to appeal out of time against the judgment of Muchelule, J. in Kisumu HCA No. 18 of 2008, delivered on 25th September 2014 on his behalf by Maina, J. The applicant's counsel, Mr. Kimanga, swore that he attended court on the scheduled date but was told by Chemitei, J.'s clerk that the Judge was not sitting and that judgment would be delivered on notice; he only discovered the judgment in the library on 8th December 2014 and applied promptly. The respondent, through Mr. Shilenje, disputed this, contending the clerk told him judgment had been given to Maina, J., before whom one 'Balusi' allegedly held brief for the applicant. The court accepted that Chemitei, J. did not sit, that the file was passed to Maina, J. at an unascertainable time, and that counsel who had personally gone to court to take judgment could not have instructed 'Balusi' to hold his brief - a person whose identity 'remains a mystery.' The court found the applicant was unaware the judgment had been delivered, and granted leave to lodge the notice and record of appeal out of time, with the notice of appeal to be filed within 14 days and the record within the periods prescribed by the Rules. Costs of the application were made costs in the appeal.

Key legal issues

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01

Whether counsel's claimed ignorance of the delivery of judgment excused the delay in filing the appeal

Holding

The court found the applicant was not aware the judgment was delivered on 25th September 2014, since Justice Chemitei did not sit and the file was passed to Maina, J., and granted leave to appeal out of time.

Reasoning

It was common ground that judgment was to be delivered by Chemitei, J. on 25th September 2014, but he did not sit and the file was passed to Maina, J. The court could not establish when the file was transferred, so it was possible counsel was told judgment would be delivered on another date. The identity of the 'Balusi' who allegedly held brief remained a mystery, and counsel who attended court to take judgment could not plausibly have instructed another to hold his brief. The delay was therefore not the applicant's fault.

p. 2

Legal principles established

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  • Where a litigant was genuinely unaware that judgment had been delivered, and the failure to appeal in time is not attributable to his fault, the court may grant leave to appeal out of time under Rule 4 of the Court of Appeal Rules.

Court orders

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  1. 1.Leave granted to the applicant to lodge the notice and record of appeal out of time
  2. 2.The appellant to lodge and serve the notice of appeal within 14 days of the date of the ruling
  3. 3.The record of appeal to be filed within the period given in the Court of Appeal Rules
  4. 4.Costs of the application to be in the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 4
On appeal from
High Court of Kenya (Kisumu)
Kisumu HCA No. 18 of 2008
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (leave to appeal out of time)

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, "Hermant Kamal Raval v Jubilee Jumbo Hardware Ltd [2015] KECA 42 (KLR)", Case Analysis (2015). Kisumu HCA No. 18 of 2008 (application under Rule 4 of the Court of Appeal Rules). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/42/eng@2015-03-19

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