[2003] KECA 122 (KLR)
The Court found that the appeal was lodged out of time and without leave of the court, contrary to the mandatory requirements of the Court of Appeal Rules. The certificate of delay was found to be misleading and not a true reflection of the time computation, and the omission of a crucial letter from the record of...
Source-derived case information.
- Citation
- [2003] KECA 122 (KLR)
- Parties
- Appellant: Wangethi Mwangi; Appellant: Nation Newspapers Limited; Respondent: J. P. Machira t/a Machira & Co. Advocates
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 303 of 2002
- Procedural Posture
- Civil Appeal / Application to Strike Out Appeal
- Outcome
- Appeal struck out as incompetent with costs to the applicant.
- Judges
- RO Kwach, D Ole Keiwua
- Legal Topics
- Appeal Timelines, Record of Appeal Requirements, Certificate of Delay, Notice of Appeal Defects
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wangethi Mwangi
Appellant
Nation Newspapers Limited
Appellant
J. P. Machira t/a Machira & Co. Advocates
Respondent
Procedural Posture
Civil Appeal / Application to Strike Out Appeal
Legal Issues
- 1 Whether the appeal should be struck out for being filed out of time without leave of court.
- 2 Whether the record of appeal is incompetent for failure to comply with rules regarding certificate of delay and inclusion of necessary documents.
- 3 Whether the notice of appeal is defective for non-compliance with prescribed form and content.
Ratio Decidendi
The Court found that the appeal was lodged out of time and without leave of the court, contrary to the mandatory requirements of the Court of Appeal Rules. The certificate of delay was found to be misleading and not a true reflection of the time computation, and the omission of a crucial letter from the record of appeal constituted a violation of rule 85. The notice of appeal was also found to be defective for not conforming to the prescribed form and content. These procedural defects were deemed fatal, and the appeal was accordingly struck out as incompetent. The applicant was awarded costs for both the application and the appeal.
Court Disposition
Appeal struck out as incompetent with costs to the applicant.
Orders
- The appeal is struck out with costs to the applicant.
- The applicant will also have costs of this motion.
Full Case Text
Judgment text and source record
31 paragraphs
IN THE COURT OF APPEAL AT NAIROBI
(CORAM: KWACH, LAKHA & KEIWUA, JJ.A.)
CIVIL APPEAL NO. 303 OF 2002
BETWEEN
WANGETHI MWANGI ……………………………………….….. 1ST APPELLANT
NATION NEWSPAPERS LIMITED ……….….………………… 2ND APPELLANT
AND
J. P. MACHIRA T/A MACHIRA & CO. ADVOCATES …..........…… RESPONDENT
(Appeal from the Judgment of the High Court of Kenya at Nairobi (Mulwa, J) delivered on the 7th day of September, 2001
in
H.C.C.C. NO. 1709 OF 1996)
RULING OF THE COURT
This is an application brought by the successful plaintiff (applicant) under rule 80 of the Court of Appeal Rules to have Civil Appeal No. 303 of 2002 struck out because the notice of appeal is defective and incompetent and consequently the record of appeal is invalid as an essential step in the proceedings has not been taken by the defendants (respondents) within the prescribed time. The appeal is also being impugned on the ground that there is no correct certificate given by the Registrar of the superior court under rule 81 of the said Rules and the record of appeal does not comply with rule 85 of those Rules.
According to the affidavit filed in support of the application the judgment appealed from was delivered on September 14, 2001 while the notice of appeal together with the letter requesting for copies of proceedings thereto. The copies were ready for collection on August 5, 2002 and the respondents ought to have filed the appeal within 60 days of that date which was filed on November 19, 2002 being 46 days out of time and filed 106 days after the respondents’ advocates were notified on August 5, 2002 that the proceedings were ready and in those circumstances we think it is rightly contended that the record of appeal is not properly before the court and the same should be struck out. It has also been submitted by the applicant that the certificate of delay is misleading as it does not represent the true and correct computation of time. It should not have been prepared by the advocates. Moreover a copy of the letter of August 5, 2002 has been omitted from the record of appeal which it is submitted explains why the respondents’ advocates were able to prepare a misleading certificate of delay aforesaid. That omission in itself is submitted, contravenes rule 85 of the Court of Appeal Rules and has rendered the record of appeal incompetent.
The respondents have not been serious in prosecuting the appeal as evident from the fact that they only extracted the decree appealed from on October 7, 2002 whereas judgment was on September 7, 2001. It is also contended that the notice of appeal is incurably defective as it does not conform to rule 74 (3) and (6) respectively as to the part of the decision to be appealed from and as to requirements of Form D in the schedules to the Rules.
The respondent opposes the application but accepts that the judgment appealed from was delivered on September 7, 2001 and the notice of appeal giving rise thereto was filed in the superior court on September 14, 2001 when the respondent applied for copies of judgment and proceedings. It seems to us that confusion appeared to have set in with regard to copy of the judgment. There is no requirement whatsoever that a copy thereof required by rule 85 (1) (g) to be included in the record of appeal must be certified and the long wait referred to in the replying affidavit between August 5, 2002 to September 20, 2002 when a certified copy was availed cannot be discounted under the proviso to rule 81(1). Accordingly we see no basis for the submission that the respondents had 60 days from September 20, 2002 within which to lodge the appeal which regrettably was lodged out of time and without leave of the court to do on November 19, 2002.
These being our views of the matter the appeal is struck out with costs to the
applicant. The applicant will also have costs of this motion.
Dated and delivered at Nairobi this 11th day of April, 2003.
R. O. KWACH
……………………..
JUDGE OF APPEAL
A. A. LAKHA
……………………..
JUDGE OF APPEAL
M. Ole KEIWUA
……………………..
JUDGE OF APPEAL
I certify that this is a
true copy of the original.
DEPUTY REGISTRAR