Attorney General v Kisilu Mutua [2019] KECA 919 (KLR)
The bottom line
#Kenya's Court of Appeal gave the Attorney General more time to appeal a KSh 2.5 million torture award to Kisilu Mutua because the delay was explained.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay of approximately ten months in filing the notice of appeal, and the further delay in presenting the extension application, was satisfactorily explained
Yes. The applicant only learnt of the delivery of judgment on 20th March 2018 when served with notice of taxation, filed the notice of appeal two days later, and the further delay was attributed to the unavailability of the court file on account of taxation proceedings.
The court found that judgment was delivered earlier than the scheduled date without notice to the applicant, who became aware only upon service of the notice of taxation on 20th March 2018 and promptly filed a notice of appeal on 22nd March 2018. The further delay of a month and a half in filing the extension application was explained from the bar as being due to the lower court file being unavailable because of taxation proceedings. The court was satisfied the delay was sufficiently explained.
Whether the intended appeal was frivolous or arguable
The intended appeal is not frivolous; it raises arguable issues, including the trial judge's treatment of limitation of time.
Examining the draft memorandum of appeal, the court identified at least one substantive issue - the limitation question on which the applicant contended the Judge erred - and concluded the appeal was not frivolous. The court also held that an expedited hearing would ameliorate any prejudice to the aged and ailing respondent, and accordingly granted the extension with conditional timelines for service and filing.
Whether granting the extension would prejudice the respondent
Any prejudice would be ameliorated by an expedited hearing of the appeal.
The respondent, who had spent 36 years on death row and is now aged and ailing, argued he was entitled to the fruits of his judgment. The court accepted that granting an extension would cause some prejudice but reasoned that directing an expedited hearing of the appeal once filed would be sufficient to ameliorate that prejudice, and proceeded to allow the application.
Legal principles established
#- The decision whether or not to extend time for appealing is discretionary, and the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.
Court orders
#- 1.The application dated 3rd May 2018 is allowed
- 2.The notice of appeal dated and filed in the lower court on 22nd March 2018 is deemed as duly filed
- 3.The applicant shall serve the notice of appeal on the respondent (if not already done) within 7 days of delivery of the Ruling
- 4.The applicant shall file and serve the memorandum and record of appeal within 45 days from the date of delivery of the ruling
- 5.The costs of the application shall abide by the outcome of the intended appeal
- On appeal from
- High Court of Kenya at Nairobi
- Constitutional Petition No. 91 of 2015
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (application for extension of time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Attorney General v Kisilu Mutua [2019] KECA 919 (KLR)", Case Analysis (2019). Not stated in the judgment (application dated 3rd May 2018 under Rule 4 of the Court of Appeal Rules). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/919/eng@2019-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.