Kichula & another v Kichula (Suing as the administrator of the Estate of the Late Philemon Kichula Pondo) & 4 others
The bottom line
#Kenya's Court of Appeal confirmed you can file an appeal record late first, then ask for an extension of time afterwards.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay in compiling and filing the record of appeal was excusable
The delay was excusable; part of it was occasioned by the High Court Registry at Migori, as evidenced by the certificate of delay, and the applicants were not indolent.
The applicants timely filed a notice of appeal, sought leave, obtained a certificate of delay, made repeated enquiries about incomplete proceedings, and proactively lodged the record before seeking extension. The Court found no complacency or indolence and held the delay was occasioned by circumstances beyond their control, warranting the equitable relief.
Whether the Salat principle against remedying an illegality applies to filing out of time before seeking extension
Salat does not apply because Rule 4 expressly allows extension of time whether before or after the doing of the act.
The Court distinguished the Supreme Court's Salat decision, holding that unlike the constitutional timelines there, Rule 4 of the Court of Appeal Rules expressly contemplates extension of time for acts already performed, so first doing the act and then seeking extension is not an illegality but a thing to be lauded.
Whether filing the memorandum and record of appeal before obtaining extension is good practice
Yes; such filing evidences alacrity and may soften opposition by shortening the delay.
Relying on the judge's earlier ruling in Ngibuini, the Court endorsed the practice of filing out of time and then seeking validation, as it conduces to time economy and provides proof that the applicant acted with reasonable speed upon discovery of error or omission.
Legal principles established
#- Rule 4 permits extension of time for an act already done, so filing a record of appeal out of time before seeking extension is permissible under the Court of Appeal Rules.
- Extension of time under Rule 4 is discretionary but must be exercised in accordance with the established principles: length of delay, reasons for delay, prejudice, conduct of parties, and prima facie chances of success.
Court orders
#- 1.The record of appeal filed on 29th November, 2021 and served on 2nd December, 2021 is deemed to have been filed and served within the prescribed time
- 2.Costs of the motion shall be in the appeal
- On appeal from
- High Court at Migori
- Misc Civil Application No. 274 of 2018 (Os)
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules; Section 3A of the Appellate Jurisdiction Act (inherent power)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kichula & another v Kichula (Suing as the administrator of the Estate of the Late Philemon Kichula Pondo) & 4 others", Case Analysis (2022). Civil Application E219 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/927/eng@2022-06-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.