East African Road Services v Nyanjui [1985] KECA 4 (KLR)

Although the intending appellant should have drawn up the decree earlier, there were still 37 days after May 27 within the 60-day period, which was ample time. The registry took 49 days to seal a task that takes half an hour. The court held that such delay hampered the applicant to an effective degree and justified extension of time notwithstanding counsel's initial mistakes.

On the plain reading of the proviso to rule 8(a), the certificate of delay concerns the time taken to obtain a copy of the proceedings to be copied. A decree is not part of the proceedings to be copied; it is an original document made after the copies of the proceedings are delivered. The registry could not therefore be faulted for declining to certify the delay in sealing the decree.

The applicant could have filed the record of appeal in time without the sealed decree and later filed a supplementary record. The court noted that the applicant's counsel did not have this clearly in mind, engaging in what the judge called a quixotic battle against the registry, though this alternative route was correctly identified by the respondent.

Relying on Gatti v Shoosmith and Palata Investments, the first consideration is the reason for the delay. Where the delay is short and the excuse acceptable, the appellant should not be deprived of the right of appeal, and no question of merits arises so long as the court has the general picture of the appeal. Merits and prejudice usually play a part only in more extreme cases, which this was not.