[1985] KECA 6 (KLR)
The Court held that the respondent's failure to copy the letter requesting certified copies of proceedings to the applicant or its advocates within 30 days of the judgment, as required by Rule 81(2) of the Court of Appeal Rules, precluded reliance on the proviso to Rule 81(1) for exclusion of time. The subsequent...
Source-derived case information.
- Citation
- [1985] KECA 6 (KLR)
- Parties
- Applicant: Esso Standard Kenya Ltd; Respondent: Onesmus Kihara Mwangi
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 29 of 1984
- Procedural Posture
- Civil Application / Application to Strike Out Notice of Appeal
- Outcome
- Notice of appeal struck out; costs to applicant.
- Legal Topics
- Appeal Timelines, Service of Documents, Court of Appeal Rules, Delay in Prosecution, Striking Out Notice, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esso Standard Kenya Ltd
Applicant
Onesmus Kihara Mwangi
Respondent
Procedural Posture
Civil Application / Application to Strike Out Notice of Appeal
Legal Issues
- 1 Whether the failure to copy the letter requesting certified proceedings to the respondent within 30 days invalidates reliance on the proviso to Rule 81(1) of the Court of Appeal Rules.
- 2 Whether the delay in prosecuting the appeal is excusable given the circumstances, including the loss of the High Court file.
- 3 Whether the notice of appeal should be struck out for want of prosecution.
Ratio Decidendi
The Court held that the respondent's failure to copy the letter requesting certified copies of proceedings to the applicant or its advocates within 30 days of the judgment, as required by Rule 81(2) of the Court of Appeal Rules, precluded reliance on the proviso to Rule 81(1) for exclusion of time. The subsequent reminders, though copied to the applicant's advocates, were sent outside the prescribed period and could not cure the initial defect. The Court further found that the delay in prosecuting the appeal was gross and unjustified, as no active steps had been taken since April 19, 1982, and the respondent had not sought an extension of time or taken steps to reconstruct the lost file....
Court Disposition
Notice of appeal struck out; costs to applicant.
Orders
- The notice of appeal filed on July 22, 1980 is struck out.
- The costs of this application will go to Esso Standard Kenya Ltd.
Full Case Text
Judgment text and source record
26 paragraphs
Esso Standard Kenya Ltd v Onesmus
Kihara Mwangi
Court of Appeal, at Nairobi June 5, 1985
Hancox JA, Platt & Gachuhi Ag JJA
Civil Application No NAI 29 of 1984
(Application from the High Court at Nairobi, Nyarangi J) Appeal – delay in filing–– letter to Registrar requesting for precedings not copied to respondent – Rule 81 (2) Court of Appeal Rules.
Nyarangi J as he then was on July 18, 1980 gave judgment in favour of the Esso Standard Kenya (no plaintiff) the defendant filed notice of appeal on July 22 1980.
However no further information about the progress of the case was available because the High Court file had allegedly been lost.
Certified copies of proceedings and judgment were applied for by a letter dated July 22, 1980. Followed by several reminders.
Unfortunately the initial letter the registrar dated July 22, 1980 was not copied to the respondent to the intended appeal or their advocate as Rule 81 (2) requires.
Held:
1. Proviso to Rule 81 (1) of the Court of Appeal rules. Cannot be invoked unless a copy of the letter to the registrar asking for certified copied of proceedings and judgments is copied to and sent to the respondent to the intended appeal by their advocate within 30 days of the decision.
2. In the circumstances the application would be determined on merits without any time being excluded by the Registrar’s certificate.
3. The delay is gross and no active steps appear to have been taken since April 19, 1982.
Notice of appeal struck out.
June 5, 1985, Hancox JA, Platt & Gachuhi Ag JJA delivered the following Judgment. On July 15, 1980, almost five years ago, Mr Justice Nyarangi, as he then was, gave judgment infavour of the plaintiff company, Esso Standard Kenya Ltd (Esso) in High Court Civil Suit 4046 of 1979.
This much is clear from the affidavit in support of the application to strike out the notice of appeal which was filed by the defendant (the present respondent) against Nyarangi, J’s judgment on July 22, 1980.
However, no further information about the progress of the case is available because it is evident from counsel’s submissions that the High Court file has been lost, and we are also informed that the decree, a vital document for the purpose of our jurisdiction, has not been drawn despite the contents of paragraph 10 of the supporting affidavit.
Certified copies of the proceedings and the judgment were, however, applied for by letter dated July 22, 1980, signed by Messrs Wachira & company, who then acted for the respondent. This was followed up by several reminders, copies of which are exhibited to the affidavit of Mr Githuka (who now represents the respondent) filed in response to the application to strike out.
There is also a recent letter to the deputy registrar which mentions the delay and renews the application for the certified copies.
Unfortunately the initial letter to the registrar applying for the certified copies was not copied to the respondent to the intended appeal (that is Esso) or their advocates as rule 81(2) requires. It is well settled by authority that the proviso to rule 81(1) (see Madan, JA, in Jaswantrai Aggarwal v Lekhraji Aggarwal, Civil Appeal 3 of 1981) cannot be invoked unless that is done. Hence, whatever the fate of the file, or the application to the registrar for the certified copies, the delay by the court in providing them cannot avail the respondent/intended appellant. The subsequent letters were, it is true, copied to Esso’s advocates, but those were not sent within 30 days of the decision of Nyarangi, J as the proviso requires.
In these circumstances we have to determine the application, on its merits without any time being excluded by the registrar’s certificate. The delay is gross, and no active steps appear to have been taken since April 19, 1982.
Furthermore, nothing has been done to reconstitute the file as, we are informed, was sought in February, 1983, and the respondent has not even filed a concurrent application for an extension of time to institute the appeal.
It is true that the blame for the loss of the file cannot be attributed to the respondent, but he could at least have ensured that the decree was extracted and cooperated in the reconstruction of the file. No blame attached to Mr Githuka who only came on the scene in October, 1984 Sympathetic as we are to the respondent we cannot condone a delay of this nature. In the circumstance we grant the application made on behalf of Esso to strike out the notice of appeal filed on July 22, 1980.
That part of the application which is to set aside the stay of execution granted by Nyarangi, J, on July 23, 1980 is incompetent, but it matters not, because the stay was granted pending the disposal of the appeal which is hereby struck out.
The costs of this application will go to Esso, in any event.