Kakiri Limited v Reuben Mauti Gisiaina [2022] KEELRC 560 (KLR)
The bottom line
#A Kenyan High Court allowed a late appeal but refused to rescue an appeal filed before permission was granted, warning that court deadlines must be respected first.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay of about 2½ months in filing the memorandum of appeal was satisfactorily explained
The delay was not undue or inordinate and was satisfactorily explained; counsel took responsibility for the inadvertence
The court applied the Salat and Leo Sila Mutiso principles: length of delay, reason for delay, chances of success and prejudice to the respondent. The delay of about 2½ months arose because the draft memorandum was inadvertently filed away before approval by the Managing Partner and was only discovered upon receipt of a mention notice. Counsel took responsibility, the respondent proved no prejudice beyond delayed conclusion, and the appeal raised a triable jurisdictional issue.
Whether an appeal already filed out of time can be deemed properly on record upon a subsequent grant of extension of time
No; such a filing is a nullity and the court cannot deem it properly on record
Relying on the Supreme Court decision in Nicholas Kiptoo Arap Korir Salat v IEBC, the court held that where the law prescribes a time for doing an act, extension must first be sought before the act is done. Filing first and seeking extension afterwards is presumptive and inappropriate, moving the court to remedy an illegality, which it cannot do. Prayer (iii) of the notice of motion therefore fell away.
Whether proceedings in the trial court should be stayed pending the appeal
Yes; proceedings in Thika CMCC No. 188 of 2018 were stayed pending determination of the appeal
The applicant apprehended that the subordinate court would proceed to hear the suit and render judgment, rendering the intended appeal nugatory. Having found the delay explained, the appeal triable, and no prejudice to the respondent beyond delay compensable by costs, the court found it just to stay the proceedings pending the hearing and determination of the appeal.
Legal principles established
#- A memorandum of appeal filed out of time without leave of the court is a nullity and of no legal consequence
- Mistakes of counsel should not be visited upon the client when considering extension of time
Court orders
#- 1.The Appellant/Applicant to file and serve its appeal within 30 days from the date of the ruling
- 2.The Appellant/Applicant to take reasonable and proactive steps to have the appeal listed for hearing at the earliest convenience
- 3.Proceedings in the Trial Court in Thika CMCC No. 188 of 2018; Reuben Matui Gisiana v Kakiri Limited stayed pending the hearing and determination of the appeal
- On appeal from
- Resident Magistrate's Court (Kiambu/Thika)
- CMCC No. 188 of 2018
- Jurisdiction invoked
- Sections 1A, 1B, 3A, 63(e), 79G and 95 of the Civil Procedure Act; Order 42 Rule 6 and Order 50 Rule 6 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kakiri Limited v Reuben Mauti Gisiaina [2022] KEELRC 560 (KLR)", Case Analysis (2022). Appeal No E123 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/560/eng@2022-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.