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Court of AppealAllowedNot stated in the judgment (application dated 3rd May 2018 under Rule 4 of the Court of Appeal Rules)· [2019] KECA 919 (KLR)

Attorney General v Kisilu Mutua [2019] KECA 919 (KLR)

Court of Appeal of Kenya
22 February 2019
1,578 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 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

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi by S. Gatembu Kairu, JA, on an application dated 3rd May 2018 by the Attorney General under Rule 4 of the Court of Appeal Rules for extension of time to file and serve a notice of appeal, memorandum and record of appeal. The applicant sought to challenge a High Court judgment (Mativo, J) in Constitutional Petition No. 91 of 2015, delivered on either 12th or 13th May 2017, which declared that the respondent, Kisilu Mutua, had been tortured by the police in 1965 following his conviction and death sentence for the murder of Pio Gama Pinto, and awarded him general damages of Kshs. 2,500,000.00. The applicant contended it only learnt of the judgment on 20th March 2018 when served with a notice of taxation, filing a notice of appeal two days later, out of time. The respondent opposed, asserting entitlement to the fruits of the judgment and arguing the intended appeal was frivolous and the delay inexcusable, especially given his age, ill-health, and 36 years in prison. Applying the principles in Leo Sila Mutiso v Rose Hellen Wangari Mwangi, the court found the delay sufficiently explained, the intended appeal arguable on the limitation question, and held that an expedited hearing would ameliorate any prejudice. The application was allowed: the notice of appeal was deemed duly filed, the applicant was to serve it within 7 days and file the memorandum and record of appeal within 45 days, with costs of the application to abide the outcome of the intended appeal.

Key legal issues

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01

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

Holding

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.

Reasoning

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.

p. 2
02

Whether the intended appeal was frivolous or arguable

Holding

The intended appeal is not frivolous; it raises arguable issues, including the trial judge's treatment of limitation of time.

Reasoning

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.

p. 2
03

Whether granting the extension would prejudice the respondent

Holding

Any prejudice would be ameliorated by an expedited hearing of the appeal.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The application dated 3rd May 2018 is allowed
  2. 2.The notice of appeal dated and filed in the lower court on 22nd March 2018 is deemed as duly filed
  3. 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. 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. 5.The costs of the application shall abide by the outcome of the intended appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 4

Cases cited (1)

  • Leo Sila Mutiso Vs. Rose Hellen Wangari Mwangi
    Civil Application No. Nai.255 of 1997 (unreported)
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

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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, "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.