Appeals

An appeal is the legal process by which a party who is dissatisfied with a judgment or order of a lower court seeks to have it reviewed and set aside or varied by a higher court. In Kenya, the appellate hierarchy runs from the Magistrates' Courts and specialised courts (the Employment and Labour Relations Court, the Environment and Land Court) to the High Court, from the High Court to the Court of Appeal, and from the Court of Appeal to the Supreme Court. Appeals are governed by the Civil Procedure Act, the Civil Procedure Rules, 2010, the Appellate Jurisdiction Act (Cap 9), and the Supreme Court Act, 2011.

This area covers the full range of appellate proceedings. Advocates act for appellants (the party bringing the appeal) and respondents (the party defending the appealed judgment). Advocates handle appeals from the Magistrates' Courts to the High Court, from the High Court to the Court of Appeal, and from the Court of Appeal to the Supreme Court. Advocates also handle appeals from specialised courts — the Employment and Labour Relations Court, the Environment and Land Court, the Tax Tribunal, and the Public Procurement Administrative Review Board.

The appeals process is governed by strict procedural rules and tight deadlines. A notice of appeal must be filed within 7 days of the decision being appealed (for appeals to the Court of Appeal) or within 14 days (for appeals to the High Court). The record of appeal must be compiled and filed within specific timeframes, and the written submissions must be prepared and served in accordance with the court's directions. Missing a deadline can be fatal to an appeal, and they manage the procedural calendar with meticulous care.

The substance of an appeal is the grounds of appeal — the legal and factual errors that the appellant alleges were made by the lower court. Advocates analyse the lower court's judgment, identify the errors, and formulate grounds of appeal that are precise, legally sound, and supported by the record. Common grounds include errors of law (misinterpretation of statutes or precedents), errors of fact (findings that are not supported by the evidence), procedural irregularities (failure to follow the proper procedure), and misdirection in the application of legal principles.

Advocates prepare the written submissions — the document that presents the appellant's (or respondent's) legal arguments to the appellate court. Written submissions are the most important document in an appeal: they frame the issues, cite the relevant authorities, and present the argument in a structured and persuasive manner. Advocates draft submissions that are thorough, well-organised, and focused on the issues that are most likely to persuade the appellate judges.

At the hearing, they present oral arguments — expanding on the written submissions, answering the judges' questions, and distinguishing or rebutting the opposing party's arguments. Appellate advocacy is a distinct skill from trial advocacy: it is less about presenting evidence and more about persuading judges to adopt a particular interpretation of the law or the record. The work also covers the conduct of appellate hearings and in the management of the dynamic, question-driven argument that characterises appellate proceedings.

Advocates also handle applications for leave to appeal (where leave is required), applications for stay of execution pending appeal, and applications for extension of time (where a deadline has been missed). Advocates advise clients honestly about the prospects of success on appeal — appeals are inherently uncertain, and they do not encourage clients to pursue appeals that lack merit.