[2002] KECA 190 (KLR)
The Court found that the appeal was filed within the prescribed time limits, as the appellant's advocates received the necessary proceedings and ruling on 12th April, 2000, and the appeal was lodged on 8th June, 2000. The certificate of delay was not defective, as it accurately set out the relevant dates....
Source-derived case information.
- Citation
- [2002] KECA 190 (KLR)
- Parties
- Appellant: Kenya Commercial Bank; Respondent: Charles Otiso Otundo
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 198 of 2000
- Procedural Posture
- Civil Appeal / Application to Strike Out Appeal
- Outcome
- application dismissed with costs
- Judges
- AB Shah
- Legal Topics
- Appeal Timelines, Certificate of Delay, Record of Appeal Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Kenya Commercial Bank
Appellant
Charles Otiso Otundo
Respondent
Procedural Posture
Civil Appeal / Application to Strike Out Appeal
Legal Issues
- 1 Whether the appeal was filed out of time without leave.
- 2 Whether an essential step in the proceedings was omitted.
- 3 Whether the certificate of delay was defective.
Ratio Decidendi
The Court found that the appeal was filed within the prescribed time limits, as the appellant's advocates received the necessary proceedings and ruling on 12th April, 2000, and the appeal was lodged on 8th June, 2000. The certificate of delay was not defective, as it accurately set out the relevant dates. Furthermore, there is no requirement under the applicable procedural rules to include the letter bespeaking copies of proceedings and ruling in the record of appeal when the certificate of delay addresses the issue. The application to strike out the appeal was therefore misconceived and without merit.
Court Disposition
application dismissed with costs
Orders
- The application to strike out the appeal is dismissed with costs.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT KISUMU
CORAM: OMOLO, SHAH & KEIWUA, JJ.A
CIVIL APPEAL NO. 198 OF 2000
BETWEEN
KENYA COMMERCIAL BANK .................................APPELLANT
AND
CHARLES OTISO OTUNDO .................................RESPONDENT
(Appeal from the decree of the High Court of Kenya at Kisii (Mbaluto, J) dated 2nd April, 1998 in H.C.C.C. NO. 331 OF 1996) ****************
RULING OF THE COURT
Mr. Mboya who is appearing for the respondent to the appeal, namely, Charles Otiso Otundo, has lodged an application to have the appeal itself, Civil Appeal No. 1998 of 2000, struck out on the grounds that:
(1)The appeal was filed out of time without leave;
(ii)Essential step has not been taken in the proceedings;
(iii)the certificate of delay is defective;
(iv)The letter bespeaking copies of proceedings and ruling apepaled against is not in the record of appeal.
It is quite clear that the appellant's advocates received the requite copies of proceedings and ruling on 12th April,
2000. Mr. Mboya's argument to the effect that the proceedings are deemed to be received when the letter informing of availability of proceedings is received is fallacions. The appeal having been lodged on 8th June, 2000 is filed in time. There is no requirement for the inclusion of a copy of the letter bespeaking copies of proceedings and ruling in the record of appeal. The certificate of delay sets out that fact.
We find nothing wrong with the certificate of delay. It sets out the dates of letters in question and the date of receipt by the appellant's advocates, of the proceedings and ruling.
This application is misconceived and is dismissed with costs.
Dated and delivered a Kisumu this 20th day of June, 2002.
R. S. C. OMOLO .......................
JUDGE OF APPEAL
A.B. SHAH
........................
JUDGE OF APPEAL
M. Ole KEIWUA .....................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR.