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Court of AppealAllowedCivil Application E041 of 2022· [2022] KECA 676 (KLR)

Anyiko v Obeti & another

Court of Appeal
8 July 2022
792 words in judgment
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The bottom line

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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 Kisumu (Mumbi Ngugi, JA) on an application under Rule 4 of the Court of Appeal Rules, 2010 for leave to file and serve a notice of appeal and record of appeal out of time, targeting the ruling and orders of Kiarie, J of the High Court at Homa Bay dated 9th November 2021 in HCCA No. 81 of 2019. The applicant explained that the ruling had been scheduled for 28th October 2021 but was delivered on 9th November 2021 without notice to his counsel, who only learnt of the delivery upon receiving a notice of taxation scheduled for 2nd February 2022. The respondents filed no response. Applying the factors in Leo Sila Mutiso v Rose Hellen Wangari Mwangi (length of and reasons for delay, chances of success, and prejudice to the respondent), the court computed the delay at only about 7 days after excluding the vacation period when time did not run, found the delay neither inordinate nor unexplained, and allowed the application. The applicant was granted leave to file the notice of appeal within 7 days and the record of appeal within 45 days thereafter. No costs order was made. The decision binds no court beyond the parties but restates the settled Rule 4 test.

Key legal issues

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01

Whether a short delay of about 7 days in filing the record of appeal, attributable to lack of notice of the delivery date of the ruling, warrants extension of time

Holding

Yes; the delay was not inordinate, the reasons were excusable and uncontroverted, and the application was merited.

Reasoning

The court applied the Leo Sila Mutiso factors. The ruling had been scheduled for 28th October 2021 but was delivered on 9th November 2021 without notice to the applicant's counsel, who only learnt of it upon receiving a notice of taxation. The uncontroverted affidavit showed a delay of only about 7 days after accounting for the period when time did not run over the court vacation. No response was filed by the respondents, so no prejudice was demonstrated.

p. 2

Legal principles established

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  • In considering an application under Rule 4 of the Court of Appeal Rules, the court considers the length of and reasons for the delay, the chances of success of the intended appeal, and prejudice to the respondent.

Court orders

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  1. 1.Application allowed; applicant granted leave to file a notice and record of appeal out of time
  2. 2.Notice of appeal to be filed and served within 7 days of the ruling
  3. 3.Record of appeal to be filed within 45 days thereafter

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Appellate Jurisdiction Actsections 3A and 3B
  • Court of Appeal Rules, 2010Rule 4
  • Court of Appeal Rules, 2010Rule 12

Cases cited (1)

  • Leo Sila Mutiso vs Rose Hellen Wangari Mwangi
    1999(2) EA 231

    Factors for considering an application under Rule 4: length of and reasons for delay, chances of success, and prejudice to the respondent.

On appeal from
High Court of Kenya at Homa Bay
HCCA No. 81 of 2019
Jurisdiction invoked
Article 159(2)(d) of the Constitution, sections 3A and 3B of the Appellate Jurisdiction Act, Rules 4 and 12 of the Court of Appeal Rules, 2010

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, "Anyiko v Obeti & another", Case Analysis (2022). Civil Application E041 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/676/eng@2022-07-08

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