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Court of AppealPartially AllowedCivil Appeal No. 59 of 2018· [2018] KECA 202 (KLR)

Abubaker Mohamed Al-Amin v Firdaus Siwa Somo [2018] KECA 202 (KLR)

Court of Appeal of Kenya
8 November 2018
WKW. KaranjaMartha Karambu KoomeM. K. KoomeJOJ. Odek
3,416 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 confirmed you can ask for leave to file an appeal out of time before filing it, but you cannot get a stay of execution until the appeal is actually filed.

What this practically means

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Executive summary

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This appeal from the High Court at Mombasa (Thande, J.) concerned the interpretation of the proviso to Section 79G of the Civil Procedure Act, which allows an appeal to be 'admitted out of time' on good and sufficient cause. The appellant, whose initial appeal against a Kadhi's court judgment (awarding his former wife about Kshs.6,925,000) had been struck out because he lacked mental capacity, later applied for leave to file an appeal out of time together with a stay of execution. The High Court dismissed both prayers, holding that leave under Section 79G could only be sought in respect of an appeal already filed, and that stay could not lie absent an appeal. The Court of Appeal allowed the appeal in part. Interpreting the proviso purposively, it held that the phrase 'an appeal may be admitted out of time' does not exclude an appeal yet to be filed: the term 'admitted' connotes both permitting an already-filed appeal to be admitted out of time and allowing an appeal to be filed out of time. The learned Judge therefore erred in refusing the extension prayer. However, the Court upheld the refusal of stay, adopting the view that the filing of an appeal is a condition precedent to the exercise of discretion under Order 42 Rule 6(1) of the Civil Procedure Rules; until a memorandum of appeal is filed, the court would be acting in vacuo. The appellant was granted 14 days to file his appeal, failing which the order would stand discharged, and each party was ordered to bear its own costs of the appeal.

Key legal issues

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01

Interpretation of the proviso to Section 79G of the Civil Procedure Act

Holding

The proviso permits both admission of an appeal already filed out of time and leave to file an appeal out of time; the learned Judge erred in dismissing the prayer on the basis that leave could not be granted before the appeal was lodged.

Reasoning

The Court identified two schools of thought on the proviso. Adopting the purposive approach to statutory interpretation - looking at the precise words, their context and the legislature's aim - it endorsed Aburili, J.'s formulation in Martha Wambui and held that Charles Karanja Kiiru sanctioned both positions. An appeal that is yet to be filed is not excluded from the phrase 'admitted out of time'. The learned Judge therefore fell into error in refusing the extension prayer on that technical ground.

p. 4
02

Jurisdiction to grant stay of execution in the absence of a filed appeal

Holding

The learned Judge was correct in declining stay because, in the absence of a filed appeal, there was nothing on which stay orders under Order 42 of the Civil Procedure Rules could be anchored.

Reasoning

The Court concurred with and adopted Meoli, J.'s observations in Rosalindi Wanjiku Macharia that the invocation of jurisdiction under Order 42 Rule 6(1) must be preceded by the filing of an appeal or compliance with the procedure for filing one. Until a memorandum of appeal is filed, the court would be acting in vacuo in granting stay. The stay prayer was therefore properly dismissed, and the appeal succeeded only as to the leave prayer.

p. 4
03

Nature of extension of time as an equitable remedy

Holding

Extension of time is not a right of a party but an equitable remedy available at the Court's discretion to a deserving party; on the depositions, the appellant had shown grounds warranting the grant of leave.

Reasoning

The Court held it is common ground that extension of time is discretionary and equitable. Applying that standard to the appellant's affidavit - which explained the delay by the striking out of his initial appeal due to his mental condition and his subsequent medical recovery - the Court was satisfied that leave ought to have been granted. The stay prayer, however, failed because it was premature in the absence of a filed appeal.

p. 3

Legal principles established

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  • The phrase 'an appeal may be admitted out of time' in the proviso to Section 79G of the Civil Procedure Act covers both the admission of an appeal already filed out of time and the grant of leave to file an appeal out of time; an intending appellant need not first file the appeal before seeking leave.
  • An application for stay of execution pending appeal under Order 42 Rule 6(1) of the Civil Procedure Rules cannot be entertained where no appeal has been filed; the filing of an appeal is a condition precedent.
  • A prayer for leave to file an appeal out of time and a prayer for stay of execution pending that appeal should not be brought together in one application; stay may only be canvassed after the appeal has been filed pursuant to the leave granted.

Court orders

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  1. 1.Prayer No. 4 of the Notice of Motion dated 2nd March, 2018 (leave to file appeal out of time) is allowed
  2. 2.Prayers 2 and 3 of the said Notice of Motion (stay of execution) remain properly dismissed
  3. 3.The appellant is granted leave to file his appeal within 14 days from the date of the judgment, failing which the order stands discharged
  4. 4.Each party bears its own costs of the appeal

Authorities

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Legislation

  • Constitution of KenyaArticle 159(1)(d)
  • Constitution of KenyaArticle 48
  • Constitution of KenyaArticle 50(1)
  • Civil Procedure ActSection 79G
  • Civil Procedure ActSections 1A, 1B & 3A
  • Civil Procedure RulesOrder 42 Rule 6(1)
  • Civil Procedure RulesOrder 42 Rule 6(6)
  • Civil Procedure RulesOrder 42 Rule 1
  • Court of Appeal RulesRule 4

Cases cited (9)

  • Charles Karanja Kiiru vs. Charles Githinji Muigwa
    [2017] eKLR
  • Martha Wambui vs. Irene Wanjiru Mwangi & another
    [2015] eKLR
  • Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & 7 others
    [2014] eKLR
  • Gerald M'limbine vs. Joseph Kangangi
    [2009] eKLR
  • GK Associates Limited & another vs. National Bank of Kenya Limited
    [2017] eKLR
  • Amri Mchoro Mwamuri vs. Indian Ocean Beach Club
    [2018] eKLR
  • Masoud M Y Noorani vs. General Tyre Sales Limited
    [2014] eKLR
  • Cusack vs. Harrow London Borough Council
    [2013] 4 ALL ER 97
  • Rosalindi Wanjiku Macharia vs. James Kiingati Kimani (Suing as the Legal Representative of the Estate of Martin Muiruri (Deceased))
    [2017] eKLR
On appeal from
High Court of Kenya at Mombasa
Misc. Applic. No. 4 of 2018
Jurisdiction invoked
Section 79G of the Civil Procedure Act; appeal against exercise of the High Court's discretion on extension of time and stay of execution

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, "Abubaker Mohamed Al-Amin v Firdaus Siwa Somo [2018] KECA 202 (KLR)", Case Analysis (2018). Civil Appeal No. 59 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/202/eng@2018-11-08

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