[1940] EACA 34

#### APPELLATE CIVIL

## Before Thacker, J.

# HASHAM LALJI, Appellant (Original Praintiff)

v.

# KOTECHA, Respondent (Original Defendant) Civil Appeal No. 11 of 1940

Appeal out of time-Application for leave to appeal out of time-Certification of time required to draw certified copy of decree—Civil Procedure Ordinance, 1924, section 65 (2)—Civil Procedure Rules, 1927, Order XXXIX r. 1.

Appellant sought to appeal from a judgment and decree dated 13-12-39 of the Resident Magistrate's Court, Eldoret. On 14-12-39 he had applied for uncertified copies of the judgment and decree and the same were delivered to him on 20-1-40. On 8-2-40 appellant applied for the certification of the copy of the judgment as a true copy and this was done and delivered on 10-2-40. The appeal was lodged on 13-2-40. The appeal being held to be out of time the appellant applied for special leave to appeal notwithstanding on the grounds that-

(1) his advocate on the appeal was not engaged in the proceedings in the lower court;

(2) his advocate desired a copy of the proceedings in the lower court in order to advise on the appeal;

(3) a copy of the judgment and the record had been applied for on the day following the judgment;

(4) time was taken by the appellant's original advocate and another advocate in Nairobi in considering whether an appeal should be preferred;

(5) there was difficulty in reading the magistrate's handwriting and necessity therefor of a typed copy of the record.

Held (4-5-40).—That the appeal was out of time and that no special cause has been shown to justify the grant of leave to appeal out of time.

Leave to appeal refused and appeal dismissed with costs.

Gautama for the appellant.

Schermbrucker for the respondent.

JUDGMENT.—This is an appeal from a judgment of the Resident Magistrate, Eldoret. A preliminary objection has been taken by the respondent that it is out of time. The judgment appealed from was delivered on the 13th December, 1939. The appeal was lodged on 13th February, 1940, that is 62 days later.

Paragraph 7 of the Memorandum of Appeal says, "Excluding the time in obtaining copies the appeal is within time". The respondent referred me to the certificate dated 10th February, 1940, which recites as follows: -

"This is to certify that Mr. S. R. Gautama, Advocate for the abovenamed plaintiff applied on 14th day of December, 1939, for uncertified copies of proceedings and judgment in the above case and the same were delivered to him on the 20th day of January, 1940, and that again on the 8th day of February, 1940, Mr. Gautama applied for certifying the said copy of judgment as true copy and that the same was done and delivered to him on the 10th day of February, 1940.

Dated at Eldoret this 10th day of February, 1940.

## (Sd.) MERVYN J. E. MORGAN,

Resident Magistrate,

Eldoret."

Now, section 65 (2) Civil Procedure Code is relevant and is as follows: —

Every appeal from a subordinate court to the Supreme Court shall be filed within the period of thirty days from the date of the decree or order appealed against: Provided however that such time as the Registrar shall certify as having been requisite for preparation of and delivery to the appellant of a copy of the decree shall be excluded from the said period; and provided also that an appeal may be admitted out of time when the appellant satisfies the Court that he had good and sufficient cause for not preferring the appeal within such period.

The certificate given by the Resident Magistrate does not certify any particular time as having been requisite for preparation of and delivery to the appellant of a copy of the decree and therefore the period of time which elapsed before Mr. Gautama took delivery of the copies of the proceedings and judgment cannot be excluded from the period of thirty days nor can I assume that the time taken was requisite. The certificate in other words is not such a compliance with the section as will enable the appellant to say that he has complied with the section. I therefore ruled during the proceedings before me that the appeal was out of time.

The appellant thereupon filed a motion asking for leave to appeal out of time and supported this by an affidavit by the appellant's advocate. The principal grounds relied on in the affidavit are as follows:

- (1) The deponent advocate was not actually engaged in the proceedings in the lower court, but Mr. Angus had conduct of the lower court proceedings. - $(2)$ The deponent advocate desired to have a copy of the proceedings in the lower court in order to advise on the appeal. - $(3)$ A copy of judgment and record was applied for on the day following delivery of judgment. - (4) Time was taken up by Mr. Angus and another advocate in Nairobi in considering whether an appeal should be preferred. - (5) The difficulty of reading the Resident Magistrate's handwriting and necessity therefore of a typed copy of the record.

Order 39, rule 1, stipulates that every appeal to the Supreme Court shall be preferred in the form of a memorandum signed by the appellant or his advocate and that the memorandum shall be accompanied by a certified copy of the decree or order appealed from. The appellant therefore had only to file his memorandum of appeal and a copy of the judgment and I am not satisfied that he could not have done this within the thirty days allowed to him. If by asking for a copy of the record also, there was delay in obtaining copy of the judgment, that is the appellant's fault. There was nothing to prevent him asking the Resident Magistrate's office to furnish and insisting on obtaining from it a copy of the judgment well within the thirty days, which was all that he required from the office in order to file his appeal. Various leading cases decided by H. M. Court of Appeal for Eastern Africa have been cited to me both by appellant and respondent and they seem to make it clear that leave to appeal out of time ought not to be given except in very special circumstances. The authority most in point and on which I found this judgment is Michael Kaliambetsos v. T. Leslie Hanmer & S. Bertram Smith, 4 E. A. C. A. 49, where at page 51 it is stated: "It is not sufficient for a party to apply for a copy of the decree and if delay follows in obtaining it to do no more but to rest content and say that he is relieved from any further delay that may result since at any rate he has applied for the copy. Where however there is delay which is unavoidable or beyond the control of the applicant such time is to be included in the time requisite." Can it be said here that the delay was unavoidable or beyond the control of the applicant? I think not, I am not satisfied that the applicant could not have obtained the certified copy of the decree within the thirty days prescribed nor am I satisfied that he could not have formulated his grounds of appeal within that time. I do not think that the record of the proceedings was necessary for him to formulate his grounds of appeal. Mr. Angus who had conducted in the lower court the proceedings for the appellant was present during these proceedings and was available and he should have been able with a copy of the judgment before him to have formulated the memorandum of appeal within the thirty days allowed. The fact that it was considered desirable to take the opinion of counsel in Nairobi does not seem to be relevant. If it were, I can see no distinction between that and obtaining an opinion from counsel in London, as Mr. Schermbrucker has cogently pointed out, and such a step would obviously take a considerable time. If the appellant had been alert I am quite satisfied that he could have obtained all the material he required (including the certified copy of the decree) well within the thirty days allowed by section 65 of the Civil Procedure Code. I would also refer to the remarks of Thesiger L. J. in Collins v. Vestry of Paddington, 5 Q. B. D. 368, at page 381: "In the interest of the public the Court ought to take care that appeals are brought before it in proper time and as between the parties it has often been remarked . . . . . that when a judgment has been pronounced and the time for appeal has elapsed without appeal the successful party has a vested right to the judgment which ought, except under very special circumstances, to be made effectual. And I think that the legislature intended that appeals from judgments should be brought within the prescribed time and that no extension of time should be granted except under very special circumstances.

In my judgment the appellant has failed to prove that very special circumstances exist in his case. For these reasons leave to appeal out of time is refused and the appeal itself is dismissed with costs.