Peter Kimani Kairu t/a Kimani Kairu & Company Advocates v Anna Marie Cassiede & another [2017] KECA 374 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed it can reinstate a withdrawn appeal where a genuine mistake caused the withdrawal, but only in exceptional circumstances.
What this practically means
#Executive summary
#Key legal issues
#Scope of rule 57(2) as a basis for rescinding a withdrawal order
Rule 57 is limited to orders relating to extension of time otherwise than to a specific date or permitting an act without a specified date; the conflicting case law was resolved in favour of the restrictive reading in Standard Chartered v Manchester Outfitters.
The Court reviewed inconsistent precedents (Jasbir Singh Rai, Githara Chuchu, Nguruman, Standard Chartered) and adopted the restrictive reading. It reasoned that two sub-rules of the same rule cannot bear totally different meanings; if they addressed different issues they would appear as separate rules. It distinguished Nguruman, which involved an order under rule 5(2)(b), from the present case seeking to reopen a concluded appeal.
Inherent/residual jurisdiction to reinstate a withdrawn appeal
The Court possesses residual jurisdiction to reinstate an abandoned or withdrawn appeal where mistake, fraud or injustice would otherwise cause a failure of justice, to be exercised with circumspection.
Relying on I. H. Jacob's exposition of inherent jurisdiction, and decisions from Tanzania and Uganda, the Court held that although finality of litigation is important, a court of final resort has residual jurisdiction to reopen decided matters in cases of fraud, bias or other injustice. Here the appeal was withdrawn on the mistaken belief that a settlement had been agreed, was never heard on merit, and the applicant had already paid the decretal amount.
Mistake by a party or counsel and the right to be heard on the merits
A blunder or mistake does not automatically disqualify a party from having his case determined on its merits; the applicant was given the benefit of the doubt because his appeal was never heard on merit.
The Court acknowledged the general expectation that a party should secure a settlement before withdrawing an appeal, but invoked the Apaloo dictum in Chemwolo that blunders do not warrant depriving a party of a hearing on the merits. It weighed the applicant's good faith, prior compliance with the conditional stay, additional payment towards settlement, and the lack of personal benefit, against the respondents' assertion of voluntary abandonment and functus officio.
Legal principles established
#- The Court has residual jurisdiction, exercised only in exceptional situations, to reopen and rehear a concluded matter where the interest of justice demands and the need to obviate injustice outweighs the finality principle.
- Rule 57 of the Court of Appeal Rules applies only where the order to be varied or rescinded is one for extension of time otherwise than to a specific date, or permitting the doing of some act without specifying a date, and rule 57(2) cannot be read independently of rule 57(1).
- An application under rule 5(2)(b) requires a filed appeal or an intended appeal in the form of a notice of appeal; a withdrawn appeal cannot sustain it.
- An application for extension of time under the Court of Appeal Rules must, as far as possible, first be brought before a single judge under rule 53, with a reference to the full court under rule 55.
Court orders
#- 1.The Motion dated 1st December 2016 allowed in terms of prayer 2
- 2.The order dated 15th December 2015 marking the appeal as withdrawn rescinded
- 3.Civil Appeal No. 175 of 2008 reinstated for hearing and determination on merit
- 4.Stay of execution of the decree of the High Court dated 4th June 2008 pending the hearing and determination of the appeal
- 5.Respondents awarded the costs of the application in any event
- 6.Appeal to be listed for hearing and determination on a priority basis
- On appeal from
- High Court
- H.C.C.C. No. 39 of 2007
- Jurisdiction invoked
- Article 159 of the Constitution; Sections 3, 3A and 3B of the Appellate Jurisdiction Act; rules 4, 5(2)(b) and 57(2) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Kimani Kairu t/a Kimani Kairu & Company Advocates v Anna Marie Cassiede & another [2017] KECA 374 (KLR)", Case Analysis (2017). Civil Application No. 264 of 2016 (UR 213/2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/374/eng@2017-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.