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Court of AppealAllowedCriminal Application E001 of 2021· [2022] KECA 987 (KLR)

Republic v Kulthum Abdillahi Omar

Court of Appeal
23 September 2022
1,646 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 let the State file its appeal late because the case was still alive and no one showed real harm.

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 Mombasa (S. Gatembu Kairu, JA) on an application by the Republic for leave to file its memorandum of appeal out of time against the High Court's dismissal, on 6 September 2018 (Majanja, J.), of its appeal against the respondent's acquittal on charges of forgery. The Republic filed a notice of appeal in time but failed to file a memorandum of appeal within fourteen days of service of the record of appeal, attributing the omission to confusion caused by the inclusion in the record of the memorandum from the earlier Magistrate's Court appeal, and to Covid-19 disruptions. The respondent opposed, citing inordinate delay and prejudice in a criminal matter. The court restated the settled Rule 4 principles from Fakir Mohamed v Joseph Mugambi and the Supreme Court's Salat decision: extension of time is an equitable, discretionary remedy, with the applicant bearing the burden of explaining delay. It found the applicant's explanation flimsy, since under Rule 62 the registrar, not the applicant, compiles the record of appeal. However, because the substantive appeal (Criminal Appeal No. 50 of 2018) remained pending and no prejudice to the respondent was demonstrated, the court exercised its discretion in favour of the Republic, granting leave to file and serve the memorandum within 14 days and directing subsequent case management on a priority basis. No costs order was made.

Key legal issues

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01

Principles governing extension of time under Rule 4

Holding

The discretion is unfettered but judicial; relevant factors include period and reason for delay, chances of appeal succeeding, prejudice to the respondent, effect on public administration, compliance with time limits, resources of parties and public importance.

Reasoning

The court restated the settled principles from Fakir Mohamed v Joseph Mugambi and the Supreme Court's decision in Salat v IEBC. Extension of time is an equitable remedy, not a right; the applicant bears the burden of laying a basis to the satisfaction of the court, and each application is considered case by case.

p. 2
02

Adequacy of the explanation for the delay

Holding

The explanation that the record of appeal contained the wrong memorandum of appeal was a flimsy excuse, because under Rule 62 it was the registrar of the High Court, not the applicant, who prepared the record of appeal.

Reasoning

The court found the applicant's explanation weak: the record transmitted by the High Court could not have included a memorandum of appeal for the second appeal, which it was incumbent on the applicant itself to prepare. The confusion alleged could not excuse the omission to file a memorandum under Rule 64.

p. 3
03

Prejudice to the respondent and pendency of the appeal

Holding

No prejudice was demonstrated; since the substantive appeal (Criminal Appeal No. 50 of 2018) remained pending, the discretion was exercised in favour of the applicant.

Reasoning

Under Rule 64(5), where no memorandum is lodged in time the court may dismiss the appeal or set it down for hearing. The appeal was still pending, and the respondent's assertion of prejudice in a criminal matter was not substantiated, so extension was granted in the circumstances.

p. 3

Legal principles established

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  • The discretion under Rule 4 of the Court of Appeal Rules, though unfettered, must be exercised judicially and each case considered on its own facts.
  • Where the substantive appeal is still pending and no prejudice is demonstrated, the court may exercise its discretion in favour of an applicant seeking extension of time even where the explanation for delay is weak.

Court orders

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  1. 1.The applicant is at liberty to file and serve its memorandum of appeal within 14 days from the date of delivery of the ruling
  2. 2.Criminal Appeal No. 50 of 2018 shall thereafter be fixed for case management before the Deputy Registrar with a view to fixing a hearing date for the appeal on basis of priority

Authorities

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Legislation

  • Court of Appeal Rules, 2010Rule 4
  • Court of Appeal Rules, 2010Rule 59
  • Court of Appeal Rules, 2010Rule 62
  • Court of Appeal Rules, 2010Rule 64 (including Rule 64(5))
  • Court of Appeal Rules, 2010Rule 65(1)

Cases cited (9)

  • Itute Ngui & anor vs. Isumail Mwakavi Mwendwa
    (1994) eKLR

    That the nature and quality of a mistake must be disclosed and grounds for extension be bona fide.

  • Raila Odinga and 5 others vs. IEBC & 3 others
    [2013] eKLR

    That leave should be granted in the interest of substantive justice.

  • John Karan Mwenda vs. Japhet Bundi Chabari
    [2021] eKLR

    Principles applicable in applications for extension of time.

  • Fakir Mohamed vs. Joseph Mugambi & 2 others
    [2005] eKLR

    Settled factors relevant to the unfettered discretion under Rule 4.

  • Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 others
    Supreme Court Application No. 16 of 2014 [2014] eKLR

    Extension of time is an equitable remedy; burden on applicant; delay must be explained; prejudice and public interest considered.

  • Mutiso vs. Mwangi
    Civil Appl. NAI. 255 of 1997 (UR)

    Cited within Fakir Mohamed as authority on Rule 4 factors.

  • Mwangi vs. Kenya Airways Ltd
    [2003] KLR 486

    Cited within Fakir Mohamed as authority on Rule 4 factors.

  • Major Joseph Mwereri Igweta vs. Murika M'Ethare & Attorney General
    Civil Appl. NAI. 8/2000 (UR)

    Cited within Fakir Mohamed as authority on Rule 4 factors.

  • Murai v Wainaina (No 4)
    [1982] KLR 38

    Cited within Fakir Mohamed as authority on Rule 4 factors.

On appeal from
High Court of Kenya at Mombasa
High Court Criminal Appeal No. 64 of 2015
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2010 (discretion to extend 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, "Republic v Kulthum Abdillahi Omar", Case Analysis (2022). Criminal Application E001 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/987/eng@2022-09-23

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