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Court of AppealPartially AllowedCivil Application No. Nai. 204 of 1999· [1997] KECA 189 (KLR)

A.H. LALJI vs B.H. LALJI [1997] KECA 189 (KLR)

Court of Appeal
3 October 1997
RKR.O. KwachALA.A. LakhaSBS.E.O. Bosire
441 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out a stale notice of appeal, ruling that a missing court file does not excuse failing to file an appeal on time.

What this practically means

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Executive summary

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This was an interlocutory application in the Court of Appeal at Nairobi, by notice of motion under rule 80 of the Court of Appeal Rules, seeking to strike out a notice of appeal dated 4th October 1996 filed by B.H. Lalji in an intended appeal against a ruling of the High Court (Justice Juma) dated 25th September 1996 in H.C.C.C. No. 3848 of 1995. The applicant, A.H. Lalji, contended that the respondent had failed to file the appeal within the prescribed time. The respondent opposed the application principally on the ground that the court file in the superior court had gone missing. The Court of Appeal (Kwach and Lakha, JJ.A., and Bosire, Ag.J.A.) rejected that explanation, relying on the ruling of the Senior Deputy Registrar of 15th May 1997 in which the respondent's advocate conceded that he had been notified on 4th March 1997 to collect the proceedings and that the file had surfaced on 30th April 1997. Time to file the appeal therefore expired on 3rd May 1997 or 29th June 1997 at the latest, and no appeal had been filed. The court allowed the application and struck out the notice of appeal with costs to the applicant. The decision binds subordinate courts and the High Court on the proposition that a notice of appeal not followed by the filing of an appeal within the prescribed time is liable to be struck out, and that a missing court file does not excuse delay where the registry had notified the advocate that proceedings were ready for collection.

Key legal issues

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01

Whether failure to file the appeal within the prescribed time warranted striking out the notice of appeal

Holding

The court struck out the notice of appeal because no appeal had been filed long after the expiry of the prescribed time, even accounting for the period the file was allegedly unavailable.

Reasoning

The ruling intended to be appealed was delivered on 25th September 1996 and the notice of appeal was served on 8th October 1996. The registry notified the respondent's advocate on 4th March 1997 that proceedings were ready. The advocate conceded the file surfaced on 30th April 1997, so time expired on 3rd May 1997 or 29th June 1997 at the latest. No appeal having been filed, the intended appeal was well out of time and the opposition failed.

p. 1
02

Whether the alleged missing court file excused the delay

Holding

The missing-file explanation did not avail the respondent, since his own advocate conceded before the Senior Deputy Registrar that he had been notified to collect the proceedings and that the file was unavailable only until 30th April 1997.

Reasoning

The court examined the ruling of the Senior Deputy Registrar delivered on 15th May 1997, in which Mr. Wagara stated from the Bar that he was notified on 4th March 1997 to collect the proceedings and conceded that the file surfaced on 30th April 1997. That concession undermined the affidavit assertion that the missing file explained the failure to file the appeal in time.

p. 1

Legal principles established

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  • A notice of appeal in respect of which no appeal has been filed within the prescribed time may be struck out under rule 80 of the Court of Appeal Rules, and a missing court file does not excuse delay where the registry had notified the advocate that proceedings were ready for collection.

Court orders

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  1. 1.The notice of appeal dated 4th October, 1996 and filed on 8th October, 1996 is struck out
  2. 2.Costs of the application to the applicant

Authorities

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Legislation

  • Court of Appeal Rulesrule 80
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 3848 of 1995
Jurisdiction invoked
Rule 80 of the Court of Appeal Rules (application to strike out a notice of appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "A.H. LALJI vs B.H. LALJI [1997] KECA 189 (KLR)", Case Analysis (1997). Civil Application No. Nai. 204 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/189/eng@1997-10-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.