ESSO STANDARD KENYA LTD vs ONESMUS KIHARA MWANGI [1985] KECA 134 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal notice filed years late, ruling that courts' own delays cannot excuse a litigant who fails to follow appeal procedure.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the notice of appeal filed on July 22, 1980 should be struck out for gross delay
- 2.Whether the delay in the provision of certified copies of proceedings and judgment by the court could avail the intended appellant under the proviso to rule 81(1)
- 3.Whether the delay in instituting the appeal could be excused given the loss of the High Court file and the failure to extract the decree
- 4.Whether the application to set aside the stay of execution granted by Nyarangi, J was competent
Key legal issues
#Whether the court's delay in furnishing certified copies could exclude time for the purposes of the intended appeal
It could not, because the proviso to rule 81(1) can only be invoked where the initial application for certified copies was copied to the other party's advocates as rule 81(2) requires; the initial letter here was not copied, and the later letters were not sent within 30 days of the decision
The court applied the settled authority of Jaswantrai Aggarwal v Lekhraji Aggarwal (Madan, JA). Since the conditions precedent in rules 81(1) proviso and 81(2) were not met, whatever the fate of the lost file or the registrar's delay, no time could be excluded by the registrar's certificate. The application therefore had to be determined on its merits with the full delay counting against the intended appellant.
Whether the gross delay should be condoned notwithstanding the loss of the High Court file
No. Although blame for the loss of the file could not be attributed to the respondent, he could have ensured the decree was extracted and cooperated in reconstructing the file; no active steps were taken since April 19, 1982 and no concurrent application for extension of time was filed
The court balanced the sympathy it felt for the respondent against the requirement of diligence. A litigant cannot rely solely on the court's mishaps; he must take steps such as extracting the decree, which is a vital document for the court's jurisdiction, and pursuing reconstruction of the file. The delay was gross and unexplained by any application for extension of time, justifying striking out.
The competency of that part of the application seeking to set aside the stay of execution
That part of the application was incompetent, but the point was moot because the stay had been granted only pending the disposal of the appeal, which was struck out
The stay granted by Nyarangi, J on July 23, 1980 was tied to the intended appeal. Once the notice of appeal was struck out, the foundation of the stay fell away, so the court found it unnecessary to rule further on that limb. The judgment does not explain the basis of the incompetence, but records the outcome and its practical irrelevance.
Legal principles established
#- The proviso to rule 81(1) of the Court of Appeal Rules excusing delay cannot be invoked unless the initial letter applying for certified copies of the proceedings and judgment is copied to the other party's advocates as required by rule 81(2)
- A party intending to appeal must take active steps to prosecute the appeal, including extracting the decree and cooperating in the reconstruction of a lost file; gross inordinate delay will not be condoned
Court orders
#- 1.Notice of appeal filed on July 22, 1980 struck out
- 2.That part of the application seeking to set aside the stay of execution granted by Nyarangi, J on July 23, 1980 declared incompetent (moot as the appeal is struck out)
- 3.Costs of the application awarded to Esso
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi
- High Court Civil Suit 4046 of 1979
- Jurisdiction invoked
- Appellate jurisdiction over an intended appeal from the High Court, under the Court of Appeal Rules (rule 81); application to strike out a notice of appeal
Relief refused
#Excuse of the delay and preservation of the intended appeal
The proviso to rule 81(1) could not be invoked because the initial letter applying for certified copies was not copied to the respondent's advocates as rule 81(2) requires, and the delay was gross with no active steps since April 19, 1982 and no concurrent application for extension of time
Setting aside the stay of execution granted by Nyarangi, J on July 23, 1980
That part of the application was incompetent, though the point became moot because the appeal was struck out and the stay was only pending the appeal
Costs
The costs of this application will go to ESSO, in any event.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In these circumstances we have to determine the application, on its merits without any time being excluded by the registrar’s certificate. The delay is gross, and no active steps appear to have been taken since April 19, 1982.
It is well settled by authority that the proviso to rule 81(1) (see Madan, JA, in Jaswantrai Aggarwal v Lekhraji Aggarwal, Civil Appeal 3 of 1981) cannot be invoked unless that is done.
Sympathetic as we are t the respondent we cannot condone a delay of this nature. In the circumstance we grant the application made on behalf of ESSO to strike out the notice of appeal filed on July 22, 1980.
The costs of this application will go to ESSO, in any event.
Issues in the judgment
#Typographical errors in the judgment text: 'Sympathetic as we are t the respondent' and 'it matters no, because'
The coram describes Platt and Gachuhi as 'Ag JA' (acting judges of appeal) but the signature block titles them 'AG JUDGE OF APPEAL' consistently; the application is styled as one by the 'APPELLANT' (Esso) though it seeks to strike out a notice of appeal filed by the respondent
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "ESSO STANDARD KENYA LTD vs ONESMUS KIHARA MWANGI [1985] KECA 134 (KLR)", Case Analysis (1985). Civil Application No 29 of 1984. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/134/eng@1985-05-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.