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Court of AppealPartially AllowedCivil Appeal No. 86 of 2015· [2020] KECA 799 (KLR)

Gabriel Osimbo v Chrispinus Mandare

Court of Appeal of Kenya
3 April 2020
3,262 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 that the Christmas vacation period doesn't count when calculating the 30-day deadline for filing appeals from lower courts.

What this practically means

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Executive summary

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This was a second appeal against the decision of the High Court at Busia (Tuiyott, J.) dated 4th March 2015, which had dismissed the appellant's first appeal for being filed out of time under section 79G of the Civil Procedure Act. The underlying dispute arose from a rent-arrears claim of Kshs. 77,000/-, entered as ex parte judgment against the appellant, followed by a consent order offering motor vehicle KTK 857 as security and the appellant's unsuccessful applications to set aside the judgment. The Court of Appeal (J. Mohammed, JA, writing the principal judgment, with a concurring judgment by H. Okwengu, JA; Githinji, JA having retired from service before delivery, the judgment being delivered under Rule 32(3) of the Court of Appeal Rules) allowed the appeal. The Court held that Order 50 Rule 4 of the Civil Procedure Rules, which excludes the Christmas vacation period (21st December to 13th January) from computations of time, applies to the filing of appeals from subordinate courts to the High Court; the rule governs computation of time and does not contradict section 79G. With the vacation period excluded, the appeal filed on 7th February 2011 was filed in time. The Court further held that the learned Judge erred in deciding the appeal on the unpleaded issue of timeliness without hearing the parties, and in failing to consider that an out-of-time appeal may be validated by leave under the proviso to section 79G, guided by Article 159(2)(d) of the Constitution and the overriding objective. The judgment and decree of the High Court were set aside and the first appeal remitted to the High Court for hearing by a Judge other than Tuiyott, J., with no orders as to costs.

Key legal issues

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01

Whether the Christmas vacation period is excluded in computing the 30-day time limit under section 79G of the Civil Procedure Act

Holding

Yes. Order 50 Rule 4 of the Civil Procedure Rules omits the period between 21st December and 13th January from computations of time for filing documents; read with Rule 2(2)(b) of the High Court Practice and Procedure Rules (Christmas vacation) and section 57(b) of the Interpretation and General Provisions Act, the appeal filed on 7th February 2011 was filed in time. This is the ratio of the decision.

Reasoning

The court traced the statutory framework: section 79G fixes 30 days for filing appeals from subordinate courts to the High Court; Order 50 Rule 4 excludes the Christmas vacation period from computations of time for doing acts under the Rules or court orders; the High Court Practice and Procedure Rules define the vacation as 21st December to 13th January; and section 57(b) of the Interpretation and General Provisions Act guides computation of time under written law. The concurring judgment stressed that Order 50 Rule 4 does not contradict section 79G but merely governs how days are computed. The vacation period was therefore excluded, making the appeal timely.

p. 5
02

Whether the High Court Judge erred in dismissing the appeal on the unpleaded issue of timeliness without hearing the parties

Holding

Yes. The learned Judge outrightly dismissed the appeal on the basis that it was filed out of time without allowing the parties the right to be heard on that issue, contrary to fair hearing principles.

Reasoning

The court found merit in the appellant's contention that the Judge decided the appeal on a basis not pleaded or raised by either party. Citing Kamlesh Mansukhalal Damji Pattni, the court emphasized that judicial decisions must be redolent of fairness, judicial authority deriving from the people under Article 159(1) of the Constitution. Deciding an unraised issue without inviting submissions denied the appellant an opportunity to be heard and constituted a misdirection warranting interference with the decision below.

p. 3
03

Whether an appeal filed out of time can be validated by subsequent leave, and the application of Article 159(2)(d) and the overriding objective

Holding

Yes. The court reiterated its broad interpretation of the proviso to section 79G: an appeal filed out of time may be validated by seeking and obtaining leave; and courts must weigh prejudice and do substantive justice without undue regard to procedural technicalities.

Reasoning

Relying on Charles Karanja Kiiru v. Charles Githinji Muigwa, adopting Martha Wambui v. Irene Wanjiru Mwangi, and Abubaker Mohamed Al-Amin, the court held that an appeal filed out of time can be validated later by leave. It further cited Abdirahman Muhumed Abdi v Safi Petroleum for the proposition that since the enactment of sections 3A and 3B of the Appellate Jurisdiction Act and Article 159(2)(d), courts must weigh delay, cost and prejudice rather than mechanically striking out filings, while not ignoring procedural improprieties altogether.

p. 4

Legal principles established

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  • The Christmas vacation period between 21st December and 13th January is excluded, under Order 50 Rule 4 of the Civil Procedure Rules, in computing the 30-day period prescribed by section 79G of the Civil Procedure Act for filing an appeal from a subordinate court to the High Court.
  • Order 50 Rule 4 is a computation-of-time rule and does not conflict with the statutory 30-day limit in section 79G of the Civil Procedure Act.
  • An appeal filed out of time under section 79G may be validated by subsequently seeking and obtaining leave of court to admit it out of time under the proviso to that section.
  • A court should not decide an appeal on an issue not pleaded or raised by the parties without affording them an opportunity to be heard.
  • In a second appeal, the Court confines itself to matters of law unless it is shown the courts below considered matters they should not have, failed to consider matters they should have, or the decision is perverse.

Court orders

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  1. 1.The appeal is allowed with no orders as to costs
  2. 2.The Judgment and Decree of the High Court dated and delivered on 4th March, 2015 is set aside
  3. 3.Busia High Court Civil Appeal No. 3 of 2011 is remitted back to the High Court for hearing by a Judge other than Tuiyott, J.
On appeal from
High Court of Kenya at Busia
H.C.C.A. No. 3 of 2011
Jurisdiction invoked
First appellate/second appellate jurisdiction of the Court of Appeal over appeals from the High Court (second appeal in this matter), the appeal having been preferred under the Court of Appeal's appellate jurisdiction; delivery in accordance with Rule 32(3) of the Court of Appeal Rules following the retirement of Githinji, JA.

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, "Gabriel Osimbo v Chrispinus Mandare", Case Analysis (2020). Civil Appeal No. 86 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/799/eng@2020-04-03

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