[2006] KECA 115 (KLR)
The Court held that the respondent failed to request for copies of proceedings within 30 days of the judgment as required by the proviso to rule 81 of the Court of Appeal Rules. The certificate of delay on record was found to be false, as the actual request was made well beyond the 30-day period. Consequently, the...
Source-derived case information.
- Citation
- [2006] KECA 115 (KLR)
- Parties
- Applicant: Daniel Chebutuk Rotich; Applicant: M K C (minor suing through His father and next friend D C R); Respondent: Emirates Airlines
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 143 of 2006
- Procedural Posture
- Civil Application / Ruling on Application to Strike Out Record of Appeal
- Outcome
- Appeal struck out as incompetent; costs awarded to applicants.
- Judges
- AM Githinji
- Legal Topics
- Appeal Timelines, Striking Out Appeal, Certificate of Delay, Record of Appeal Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Chebutuk Rotich
Applicant
M K C (minor suing through His father and next friend D C R)
Applicant
Emirates Airlines
Respondent
Procedural Posture
Civil Application / Ruling on Application to Strike Out Record of Appeal
Legal Issues
- 1 Whether the record of appeal was filed within the prescribed time under the Court of Appeal Rules.
- 2 Whether the respondent could rely on the proviso to rule 81 regarding delay in obtaining proceedings.
- 3 Whether the certificate of delay was valid and could be relied upon to extend time for filing the appeal.
Ratio Decidendi
The Court held that the respondent failed to request for copies of proceedings within 30 days of the judgment as required by the proviso to rule 81 of the Court of Appeal Rules. The certificate of delay on record was found to be false, as the actual request was made well beyond the 30-day period. Consequently, the respondent could not benefit from the extension of time provided by the proviso, and the record of appeal was filed out of time. The appeal was therefore incompetent and was struck out with costs to the applicants.
Court Disposition
Appeal struck out as incompetent; costs awarded to applicants.
Orders
- The record of appeal is struck out with costs to the applicants.
- The costs of this application are awarded to the applicants.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL OF KENYA AT NAKURU
Civil Appli 143 of 2006
DANIEL CHEBUTUK ROTICH ……........................…………………………..….. 1ST APPLICANT
M K C (minor suing through His father and next friend D C R ................................................................................................2ND APPLICANT
AND
EMIRATES AIRLINES …………………......................…………………………….. RESPONDENT
( An application to strike out the Record of Appeal from the judgment of the High Court of Kenya at Nakuru ( Musinga, J.) dated 7th April, 2006
in
H.C.C.C NO.368 OF 2001)
**************
RULING OF THE COURT
This is a motion by D C R suing on behalf of a minor Master M K C, and on behalf of himself, seeking orders that a record of appeal which was filed on 7th April 2006, by the respondent Emirates Airlines be struck out. The reason advanced in support of the application is that the record of appeal was lodged in court out of time.
The applicants successfully sued the respondent in the superior court for damages, special and general under Nakuru High Court Civil Case No. 368 of 2001. Judgment was pronounched on 27th April 2005. The respondent having been dissatisfied with the decision timeously filed a notice of appeal on 5th May 2005. It was, under our rules, supposed to lodge a record of appeal within 60 days, but it did not do so. It lodged the record of appeal on 7th April 2006, long after the period stipulated and seeks to rely on the proviso to rule 81 of the Rules of this Court.
The proviso to rule 81 aforesaid will not avail a party unless that party requests for copies of proceedings in writing within 30 days of the date of the decision against which an appeal is intended.
On the material before us it is clear that the respondent did not request for copies of proceedings until 29th August 2005, long after the 30 days stipulated under rule 81,above.Although a copy of the Certificate of Delay on record states that the letter bespeaking copies of proceedings was filed within 30 days, that cannot possibly be true since as we stated earlier the judgment against which an appeal is intended was delivered on 27th April, 2005. In the circumstances, that certificate is false and cannot be relied upon. It then follows that the record of appeal was filed out of time and that renders Civil Appeal No.76 incompetent. The appeal is therefore ordered struck out with costs. We also award the costs of this application to the applicants.
Dated and delivered this 29th day of September, 2006.
P.K. TUNOI
…………………….
JUDGE OF APPEAL
S.E.O. BOSIRE
………………………
JUDGE OF APPEAL
E.M. GITHINJI
…………………………
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR