[2015] KECA 411 (KLR)

IN THE COURT OF APPEAL

AT MALINDI

(CORAM: MAKHANDIA, OUKO & M’INOTI, JJ.A.

CIVIL APPEAL NO. 10 OF 2015

BETWEEN

SALAMA BEACH HOTEL LIMITED......................APPLICANT

AND

MARIO ROSSI...............................................RESPONDENT

(An application to strike out the record of appeal filedon

25th February 2015against the ruling and order of the High

Court of Kenya at Malindi,(Angote, J.) dated 9th May 2014

in

HCCC. NO. 84 of 2010)

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

RULING OF THE COURT

On 9th May 2014 Angote, J. determined an application in which the respondent, Mario Rossi, was seeking to be paid by the appellant, Salama Beach Hotel Ltd, the value of a villa that the latter had agreed in a consent order to build for him in consideration of his abandoning his claim to Villa No. 6 on Plot No 9890, Watamu. The learned judge awarded the respondent Kshs 14 million and costs of the application. Aggrieved by the award, the appellant lodged a Notice of Appeal on 16th May 2014 and the Record of Appeal on 25th February 2015.

On 23rd March 2015 the respondent applied under Rules 82(1) and84 of the Rules of this Court to strike out the record of appeal on the grounds that the same was filed out of time and did not contain a primary document, namely a certified copy of the order appealed from. The application was supported by an affidavit sworn on 16th March 2015 by the respondent’s advocate, Mr. Joseph Munyithya, in which he deposed that the record of appeal was filed outside the prescribed time; that no letter bespeaking the proceedings was served upon his firm within the prescribed time or at all; and that the record of appeal did not contain a certified copy of the order appealed from.

The appellant resisted the application through an affidavit sworn on 28th April 2015 by its Managing Director, Hans Juergen Langer. In paragraph 7 of the affidavit it was conceded that a copy of the letter bespeaking proceedings was not served upon the respondent’s advocate, though it was contended that at the time of delivery of the ruling, the appellant’s counsel applied informally to be supplied with copies of the proceedings, which application was granted. The appellant further deposed that certified copies of the proceedings were availed on 6th January 2015, and a certificate of delay was issued on 8th January 2015. In the appellant’s opinion, the failure to serve a copy of the letter bespeaking proceedings was a technical rather than a substantial issue, which could be overlooked. The replying affidavit however, did not address the complaint regarding lack, in the record of appeal, of a certified copy of the order appealed from.

When they appeared before us on 6th July 2015, Mr. Munyithya, learned counsel for the respondent and Mr. Anthony Ndegwa, learned counsel for the appellant, advanced arguments founded on their clients’ respective averments, which we have set out above.

Mr. Munyithya added that although the appellant had been notified when the present application was served upon it that the record of appeal did not contain a certified copy of the order appealed from, it had failed to file a supplementary record of appeal to bring on record a certified copy of the order. Relying on the decision of the Supreme Court in BWANA MOHAMED BWANA V. SILVANO BUKO BONAYA, PETITION NO. 15 OF 2014, counsel submitted that failure to include prescribed documents in the record of appeal renders the appeal incompetent. Learned counsel also relied on the decision of this Court in RAMJI DEVJI VEKARIA V, JOSEPH OYULA, CA (APPLICATION) NO. 154 OF 2010 (ELDORET) and submitted that the overriding principle cannot be invoked to make competent an appeal that is otherwise incompetent by reason of being filed out of time.

For his part, Mr. Ndegwa took issue with the fact that the affidavit in support of the application was sworn by the respondent’s advocate rather than by the respondent himself. In counsel’s view this was irregular, leading to the conclusion that the application was not supported by any evidence. Counsel further submitted that the appellant should not be faulted because the copy of the order in the record of appeal, which he admitted was not certified, was the document that had been supplied by the court.

We have carefully considered this application and the rival submissions. The proviso to rule 84 obliged the respondent to file this application within 30 days of service upon him of the record of appeal. We are satisfied, as explained by Mr. Munyithya and confirmed by Mr. Ndegwa, that the respondent duly obtained leave to file the application out of time and therefore there is no breach of that proviso.

As regards the appellant’s objection regarding the affidavit supporting the application, it is clear that Mr. Munyithya has deponed only to matters within his personal knowledge as counsel acting in this matter both in the High Court and in this Court. Ordinarily counsel is obliged to refrain from swearing affidavits on contentious issues, particularly where he may have to be subjected to cross examination (SeePATTNI V. ALI & 2 OTHERS, CA NO 354 OF 2004 (UR 183/04). Rule 9of theAdvocates (Practice) Rules however permits an advocate to swear an affidavit on formal or non-contentious matters. In this case, as far as is relevant to this application, Mr. Munyithya has deposed that his firm, as the advocates on record for the respondent, was not served with the letter bespeaking the proceedings, and that the record of appeal does not contain a certified copy of the order appealed from. Beyond that he has expressed his opinion that the appeal was filed out of time. On the facts of this application, even if the appellant were to swear the affidavit himself, he would most certainly be repeating what he would have been informed by Mr. Munyithya. In these circumstances, we do not see any legitimate basis for this complaint.

Rule 82(1) of the Rules of this Court requires an appeal to be filed within 60 days from the date when the notice of appeal is filed. The purpose of setting the time within which the appeal should be filed, as well as other timelines prescribed by the Rule, is to give meaning to the constitutional value in Article 159(2) (b) that justice shall not be delayed. The Rules however recognize that delay in filing the appeal may be occasioned by non-availability of certified copies of proceedings. To address such instances, the proviso to rule 82(1) allows an intended appellant who has, within 30 days of the decision appealed from, applied in writing for the proceedings and served a copy of that application on the opposite number, to omit, in computing the 60 days, the number of days certified by the High Court to have been required to prepare the proceedings. In other words, the 60 days for filing the appeal do not start to run until the intended appellant has been advised of the availability of the proceedings. Rule 82 (2) expressly disentitles an intended appellant who has failed to apply within the specified 30 days or to serve on the opposite number the letter bespeaking the proceedings, from reaping the benefits of the proviso.

In CHRISTINE WANGARI MUNGA V. DAVID MWAURA & ANOTHER, CA NO. 196 OF 2013, a similar question was raised and the Court expressed itself thus:

“We agree with the respondents’ counsel that having failed to serve that letter upon the respondents’ advocates as required by rule 82(2), the appellant cannot rely upon the proviso to rule 82(1) which allows the 60 days for filling of an appeal to exclude such time as is certified by the registrar to have been required to prepare the proceedings. In that eventuality, the appellant was obliged to file the appeal within 60 days of lodging the notice of appeal.”

The Court reiterated the same view in BENEDICT MWANZIGHE & ANOTHER V. GASPER WALELE & 2 OTHERS, CA NO. 255 OF 2010 (MOMBASA), MUSYOKA MUTIE MAKAU V. PETER MUTIE MAKAU & ANOTHER, CA NO NAI 303 OF 2013, and DEVELOPMENT BANK OF KENYA & ANOTHER V. FRANCIS NDEGWA T/A MURUGURU HOLDINGS LTD, CA NO. 28 OF 2013 (NYERI). In the above four cases the Court held that the parties in default could not rely upon the overriding objective to void the prescribed time for filing the appeal. Indeed, in RAMJI DEVJI VEKARIA V. JOSEPH OYULA (supra), the Court stated as follows when it was invited to invoke the overriding objective and ignore the fact that the appeal was filed out of time:

“Mr. Kitiwa urges us to exercise our discretion pursuant to the provisions of sections 3A and 3B of the Appellate Jurisdiction Act. With respect, this is not a matter in which those provisions can be invoked. This is an omission that goes to the root of the Rules, i.e. whether or not a party can file an appeal out of time and without leave. To invoke the provisions of section 3A and 3B would result in a serious precedent being set which will mean utter confusion in the court corridors as there will no longer be any reason for following the rules of the Court, even when they have been violated with impunity. Sections 3A and 3B were not meant for that.”

In this case the appellant readily admits that it did not serve upon the respondent a letter bespeaking the proceedings. In those circumstances the appellant cannot rely on the proviso to rule 82(1) and was therefore obliged to file the appeal within 60 days of 16th May 2014, when it filed the Notice of Appeal. Accordingly, the record of appeal ought to have been served on 15th July 2014. Instead, it was filed on 25th February 2015, some seven months late.

There’s also the issue of lack of a certified copy of the order appealed from as required by rule 87(1) (h) of the Rules. Again it is not disputed that the order on record is not certified. Under rule 88, the appellant had, within 15 days after lodging the appeal, an opportunity to correct the omission by introducing without leave, a certified copy of the order in a supplementary record. Thereafter, the appellant still had the option of applying for leave to introduce a proper document by way of a supplementary record. Up to the date of hearing of the application, the appellant did not, for reasons, which we cannot fathom, avail itself of these easy and plain remedies.

This Court considered the effect of lack of a certified copy of the decree or order appealed from as required by rule 87(h) of the Court of Appeal Rules, in FLORIS PIERRO V. GIANCARLO FALASCONI, CA NO 145 OF 2012. The Court concluded that an appeal can only be against a decree or an order and that failure to include the order or decree appealed against renders the appeal fatally defective and incurable even under the overriding objective. In that case the order appealed from was not included. In the present appeal, the order is included but it is not certified. To the extent that the purpose of certification of the order is to confirm its authenticity, inclusion of an order that is not certified is, in our view, as bad as complete non-inclusion of the order.

The Supreme Court has also added its voice on the issue in BWANA MOHAMED BWANA V. SILVANO BUKO BONAYA, (supra). In that case Court struck out a record of appeal that did not contain, among others, a certified copy of the decree. On appeal to the Supreme Court, in addition to holding that the appeal did not involve issues of constitutional interpretation or application, the Court affirmed that the omission of mandatory documents from the record had the effect of rendering the appeal defective and incompetent and that a court could not exercise its adjudicatory powers where an appeal is incompetent. The Supreme Court concluded that a court could not exercise its jurisdiction where lawful, prior requirements had not been fulfilled.

Taking all the foregoing into consideration, we are satisfied that Civil Appeal No. 10 of 2015 is incompetent. Accordingly we allow the respondent’s notice of motion filed on 23rd March 2015, and strike out the said appeal. The respondent shall have costs of the application. It is so ordered.

Dated and delivered at Malindi this 30th day of September 2015

ASIKE MAKHANDIA

………………………

JUDGE OF APPEAL

W. OUKO

………………………

JUDGE OF APPEAL

K. M’INOTI

………………………

JUDGE OF APPEAL