[2014] KECA 494 (KLR)

IN THE COURT OF APPEAL

AT NYERI

(CORAM: VISRAM, KOOME & ODEK, JJ.A)

CIVIL APPEAL (APPLICATION) NO. 8 OF 2013

BETWEEN

FELISTER WAKONYO WAMAHIU …..……... APPLICANT/RESPONDENT

AND

JOSEPH WACHIRA MWANGI alias

JOSEPH KANYINA ………………….....………. RESPONDENT/APPELLANT

(An application to strike out the appeal from the judgment of the High Court at

Nyeri (Sergon, J.) dated 17th August, 2012

in

H.C Succession Cause No. 359 of 2009)

************************************

RULING OF THE COURT

Before us is an application brought pursuant to Rule 84 of the Court of Appeal Rules(the Rules). The applicant seeks an order striking out the appeal filed herein. The appeal is from the judgment of the High Court (sergon, J.) wherein the summons for confirmation as filed by the applicant in respect of the Estate of Peter Wamahiu Duncan (deceased) was allowed as prayed and the respondent’s protest was dismissed. The grounds relied upon are that, firstly, crucial documents were omitted from the Record of Appeal; secondly, the Record of Appeal was filed and served out of time and thirdly, the Notice of Appeal is defective.

The applicant’s advocate, Mr. Samuel Njuguna, deposed that the Notice of Appeal was defective because it indicated that it was lodged in the High Court on 30th August, 2012 while the court’s stamp thereon indicated it was received on 31st August, 2012. Despite the judgment which is the subject of this appeal being delivered on 17th August, 2012, the respondent waited for 25 days before requesting for copies of proceedings on 11th September, 2012. That time within which the appeal ought to have been filed expired on 25th March, 2013. The respondent filed the appeal on 19th April, 2013, 24 days after lapse of the requisite time frame. The applicant’s advocate deposed that the record of appeal was served outside the stipulated period.

In response the respondent deposed that the Notice of Appeal was filed and served within the requisite time frame. The period within which the appeal ought to have been filed could only be computed after the proceedings were prepared and availed to the respondent, on 18th February, 2013. The respondent maintained that the Record of Appeal was filed within time save that it was not served within seven days. He deposed that the delay in service was neither deliberate nor inordinate. He maintained that the applicant would not suffer any prejudice and the appeal ought to be determined on merits.

During interpartes hearing, Mr. Njuguna, learned counsel for the applicant, reiterated the grounds in support of the application. He submitted that the respondent had filed a supplementary Record of Appeal containing the omitted documents without leave of this Court. He stated that the Record of Appeal was served seven days late and urged us to allow the application. On the other hand, Mr. Nderi, learned counsel for the respondent, relied on the respondent’s replying affidavit. He urged us to invoke the overriding objective which guides the Court and dismiss the application with costs.

We have considered the application before us, the grounds in support of the application, submission by learned counsel and the law. The application was brought pursuant to Rule 84 of the Rules which provides:-

“A person affected by an appeal may at any time either before or after institution of the appeal apply to the Court to strike out the Notice of Appeal or the appeal, as the case may be on the ground that no appeal lies or that some essential step in proceedings has not been taken or has not been taken within the prescribed time.

Provided that an application to strike out a Notice of Appeal or appeal shall not be brought after the expiry of 30 days from the date of service of the Notice of Appeal or Record of Appeal as the case may be.”

The Notice of Appeal indicates that it was lodged in the High Court on 30th August, 2012 while the High Court stamp indicates it was received on 31st August, 2012. Does this render the Notice of Appeal and the appeal herein incompetent? We are of the view that discrepancy in respect of the two dates on the Notice of Appeal does not go to the root of the appeal. This is because firstly, the High Court stamp clearly indicates that the Notice of Appeal was received on 31st August, 2012; the Notice of Appeal was filed within 14 days of the judgment dated 17th August, 2012 which is the subject of this appeal. We find that nothing turns on it and the Notice of Appeal is competent.

The applicant contended that the Record of Appeal herein was filed out of time without leave of this Court. The record of appeal was filed on 19th April, 2013. Rule 82of the Rules provides that an appeal should be instituted within sixty days of the date of filing the Notice of Appeal. This rule further provides that in computing the said time any period certified by the registrar as having been required to prepare the proceedings should be excluded. In this case it is not in dispute that the judgment was delivered on 17th August, 2012; the respondent's counsel requested for proceedings vide a letter dated 11th September, 2012. According to the applicant, the respondent delayed for a period of 25 days before requesting for proceedings. The proviso under Rule 82of the Rules provides:-

“Provided that where an application for a copy of the proceedings in the superior court has been made in accordance with sub-rule (2)within thirty days of the date of the decision against which it is desired to appeal,there shall, in computing the time within which the appeal is to be instituted, be excluded such time as may be certified by the registrar of the superior court as having been required for the preparation and delivery to the appellant of such copy.” Emphasis added.

Therefore, the respondent requested for proceedings within the requisite time frame of 30 days of the date of judgment.

Going back to the computation of time within which the appeal ought to have been filed, we note that from the Certificate of Delay dated 4th April, 2013 indicates that the proceedings were availed on 18th February, 2013. Consequently, time begun running on 31st August, 2012 when the Notice of Appeal was filed and stopped running when the respondent requested for proceedings on 11th September, 2012. Time resumed running on 18th February, 2013. Between 31st August, 2012 when the Notice of Appeal was filed and 11th September, 2012 when the proceedings were requested 10 days had lapsed leaving 50 days within which the appeal could be filed. 50 days continued running from 18th February, 2013 when the proceedings were availed. Therefore, the appeal ought to have been filed on or before 9th April, 2013. In Mariamu Abubakar Ireri & another -vs- National Cereals & Produce Board- Civil Application No. 92 of 2008, this Court held,

“..in view of what we stated earlier, that upon requesting for copies of proceedings from the court and because the letter bespeaking those proceedings was copied to the applicant's counsel, time prescribed for filing an appeal stopped running. The running of the time resumed on or about 3rd September when copies of proceedings were delivered to the respondent.”

See also this Court’s decision in Nyeri Wholesalers Limited -vs- Kasturi Limited– Civil Application No. Nai. 132 of 2012. The appeal was filed out of time on 19th April, 2013 and without leave of this Court. No explanation was given by the respondent for the delay in filing the Record of Appeal. Can the overriding objective of this Court be invoked to save the appeal? We are of the view that the competency of the appeal goes to the jurisdiction of this Court and cannot be cured by the overriding objective of this Court. It is trite that this Court has jurisdiction to entertain appeals filed within the requisite time and/or appeals filed out of time with leave of the Court. To hold otherwise would upset the established clear principles of institution of an appeal in this Court. In City Chemist (NRB) & Others –vs- Oriental Commercial Bank Ltd-Civil Application No. Nai. 302 of 2008this Court in discussing the overriding objective of the Court stated:-

“That however is not to say that the new thinking totally uproots well established principles or precedents in the exercise of discretion of the court which is a judicial process devoid of whim and caprice. On the contrary, the amendment enriches those principles and emboldens the court to be guided by a broad sense of justice and fairness as it applies the principles. The application of clear and ambiguous principles and precedents assists litigants and legal practitioners alike in determining with some measure of certainty the validity of claims long before they are instituted in court. It also guides the lower courts and maintains stability in the law and its application.”

In the circumstances, we are of the considered view that the appeal herein is not competently before this Court and is hereby struck out. The applicant shall have costs of this application.

Dated and delivered at Nyeri this 30th day of June, 2014.

ALNASHIR VISRAM

…………………………….

JUDGE OF APPEAL

MARTHA KOOME

……………………………

JUDGE OF APPEAL

J. OTIENO-ODEK

………………………………

JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR