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Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application E264 of 2020

Kimani v Kamau

Court of Appeal
4 November 2022
733 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 refused to extend time to appeal because the applicant couldn't prove which decision he was actually appealing against.

What this practically means

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Executive summary

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This is a ruling by a single judge of the Court of Appeal (F Sichalet, JA) on an application for extension of time, arising from a prior ruling of the court dated November 5, 2021 in which Kantai, Nyamweya and Lesiit JJ.A granted a stay of execution of a ruling of Okong'o J in ELC No. 1068 of 2007 and directed that the pending application for leave to appeal out of time be placed before a single judge. The applicant, Alphonce Kamau Kimani, sought leave to file an appeal out of time against a judgment he stated was dated November 30, 2003. Sichalet JA identified serious discrepancies in the record: the annexed Notice of Appeal referred to a ruling delivered on June 26, 2019, the annexed ruling was dated July 30, 2020 (while the earlier stay application described it as July 31, 2020), and there was no evidence of the deposed request for certified copies of proceedings - the document marked BG-3 was from Kenya Law and not a request for proceedings. Holding that it would be dangerous to speculate or assume the date of the impugned judgment, the court declined to grant leave to file the appeal out of time as sought and made no order as to costs. The decision below was not disturbed; the application simply failed on its own material. No authorities were cited.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant should be granted leave to file an appeal out of time against the judgment said to be dated November 30, 2003
  2. 2.Whether the discrepancies in the dates of the impugned decision and in the supporting affidavit permit the order sought to issue

Key legal issues

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01

Extension of time to file an appeal where the impugned decision is uncertain

Holding

The application was refused because the material disclosed three different dates for the impugned decision and no evidence of a request for certified proceedings, leaving the court unable to grant the order sought.

Reasoning

The applicant sought leave to appeal a judgment said to be dated November 30, 2003, but the Notice of Appeal referred to a ruling of June 26, 2019, while the annexed ruling was dated July 30, 2020. The court held it could not speculate on the correct date. The deposed request for certified copies was unsupported; the document marked BG-3 was from Kenya Law, not a request for proceedings.

p. 2

Legal principles established

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  • A single judge of the Court of Appeal may decline an application for extension of time where the date and identity of the decision sought to be appealed cannot be established from the material before the court.

Court orders

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  1. 1.The court declines to grant the applicant leave to file an appeal out of time against the judgment dated November 30, 2003 as sought
  2. 2.No order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi
ELC No. 1068 of 2007
Jurisdiction invoked
Rules 4, 5(2)(b), 31 and 42 of the Court of Appeal Rules, 2010 (single judge jurisdiction under Rule 4)

Relief refused

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Leave to file an appeal out of time against the judgment dated November 30, 2003

Irreconcilable discrepancies between the stated judgment date, the Notice of Appeal (June 26, 2019 ruling) and the annexed ruling (July 30/31, 2020), and no evidence of a request for certified proceedings

p. 2

Costs

There will be no order as to costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

it would be dangerous for this Court to speculate or assume the date of delivery of the impugned judgment that is sought to be appealed against.
p. 2Extension of time - certainty of the decision appealed against
In light of all these discrepancies which leaves this court in a lot of dilemma it is evident that the order being sought cannot issue.
p. 2Effect of material discrepancies on the relief sought
Accordingly, this court declines to grant the applicant leave to file an appeal out of time against the judgment dated November 30, 2003 as sought.
p. 2Final orders - dismissal of the application
There will be no order as to costs.
p. 2Costs

Issues in the judgment

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material

Conflicting dates for the impugned decision: the application cites November 30, 2003; the Notice of Appeal cites June 26, 2019; the annexed ruling is dated July 30, 2020 while the preamble says July 31, 2020.

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, "Kimani v Kamau", Case Analysis (2022). Civil Application E264 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1243/eng@2022-11-04

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