Esso Standard Kenya Ltd v Onesmus Kihara Mwangi (Civil Miscellaneous Application 29 of 1984) (Civ) [1985] KECA 141 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a five-year-old appeal because the appellant delayed and failed to copy the other side when requesting certified judgment copies.
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 proviso to rule 81(1) of the Court of Appeal Rules could be invoked by the respondent to exclude time taken by the court to furnish certified copies, given that the initial application for certified copies was not copied to the applicant's advocates as rule 81(2) requires
- 2.Whether the notice of appeal filed on July 22, 1980 should be struck out for gross delay
- 3.Whether the stay of execution granted by Nyarangi J on July 23, 1980 should be set aside
Key legal issues
#Whether delay by the court in providing certified copies could be excluded under the proviso to rule 81(1)
The proviso could not be invoked because the initial application for certified copies was not copied to the applicant or its advocates as rule 81(2) requires, and subsequent letters were not sent within 30 days of the decision.
The court noted the initial letter applying for certified copies was not copied to Esso or its advocates as rule 81(2) requires. Following Madan JA in Jaswantrai Aggarwal, the proviso to rule 81(1) cannot be invoked unless that is done. The subsequent letters, though copied to Esso's advocates, fell outside the 30-day window. Accordingly the delay had to be determined on its merits with no time excluded.
Whether the notice of appeal should be struck out for delay despite the loss of the High Court file
Yes. The delay was gross, no active steps had been taken since April 19, 1982, no application for extension of time had been filed, and the respondent had not extracted the decree or cooperated in reconstructing the file.
While sympathy was extended to the respondent and the blame for the lost file could not be laid at his door, he could have extracted the decree and cooperated in reconstructing the file. Nothing was done to reconstitute the file despite a request in February 1983, and no concurrent application for extension of time was filed. The delay since the July 1980 judgment was so gross that the court could not condone it.
Legal principles established
#- The proviso to rule 81(1) excluding the time taken by the court to furnish certified copies cannot be invoked unless the application for certified copies is copied to the other side as required by rule 81(2); letters sent later, outside the 30-day period, do not cure the omission.
- A party intending to appeal must take active steps to extract the decree and cooperate in the reconstruction of a lost file; gross and unexplained delay in instituting an appeal justifies striking out the notice of appeal even where the loss of the file is not that party's fault.
Court orders
#- 1.The application made on behalf of Esso to strike out the notice of appeal filed on July 22, 1980 is granted
- 2.The notice of appeal filed on July 22, 1980 is struck out
- 3.The part of the application seeking to set aside the stay of execution granted by Nyarangi J on July 23, 1980 is held incompetent and not granted (the stay lapses as it was granted pending disposal of the appeal, which is struck out)
- 4.Costs of the application to Esso
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Nairobi
- High Court Civil Suit 4046 of 1979
- Jurisdiction invoked
- Inherent/appellate jurisdiction of the Court of Appeal over an intended appeal from the High Court, under the Court of Appeal Rules (rule 81)
Relief refused
#Setting aside the stay of execution granted by Nyarangi J on July 23, 1980
That part of the application was incompetent, though immaterial since the stay was pending disposal of the appeal which was struck out
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.
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.
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.
Sympathetic as we are to the respondent we cannot condone a delay of this nature.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Esso Standard Kenya Ltd v Onesmus Kihara Mwangi (Civil Miscellaneous Application 29 of 1984) (Civ) [1985] KECA 141 (KLR)", Case Analysis (1985). Civil Application No NAI 29 of 1984. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/141/eng@1985-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.