Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application No. NAI 52 of 1997

WILLIAM JUMA & ANOTHER vs KENYA BREWERIES LIMITED & ANOTHER [1997] KECA 237 (KLR)

Court of Appeal
10 June 1997
301 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~1 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal refused to kill an appeal where court proceedings went missing, protecting appellants who diligently pursued their files.

What this practically means

#

Executive summary

#
This is a short ruling of the Court of Appeal at Nairobi (Kwach, Akiwumi and Shah, JJ.A.) dated 10th June 1997 on an application by William Juma and Michael Odori to strike out a notice of appeal filed on 22nd June 1993 by Kenya Breweries Limited and Njenga Kongo, in an intended appeal from a judgment of the High Court at Nairobi (Githinji J) dated 9th June 1993 in H.C.C.C. Nos. 3514 and 3515 of 1985. The applicants argued that the respondents had failed to take an essential step in the appeal process, namely filing the record of appeal in time, relying on the respondents' letter of 18th June 1993 requesting copies of the proceedings and judgment as evidence that nothing more had been done. The court rejected this characterisation of the time position. It found that although stay had been obtained, the respondents had done all they could possibly do to obtain the proceedings, which the applicants could not deny had been permanently missing until recently. On that basis the court dismissed the application and awarded the respondents the costs of the application. The intended appeal was therefore allowed to proceed; the underlying High Court judgment was not disturbed by this ruling. No authorities or statutory provisions are cited in the ruling.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondents' notice of appeal should be struck out on the ground that they failed to take an essential step in the appeal process by not filing the record of appeal in time

Key legal issues

#
01

Whether failure to file the record of appeal in time warrants striking out a notice of appeal

Holding

The application was dismissed; the delay was excused because the proceedings had been permanently missing and the respondents had diligently pursued them, including requesting copies of the proceedings and judgment nine days after judgment

Reasoning

The applicants relied on the respondents' letter of 18th June 1993 requesting copies of the proceedings and judgment to show that nothing further had been done to pursue the appeal. The court accepted that stay had been obtained and that the proceedings had been permanently missing until recently, so the respondents could not be faulted for the delay in filing the record. The application was therefore dismissed with costs to the respondents.

p. 2

Legal principles established

#
  • A notice of appeal will not be struck out for failure to file the record of appeal in time where the appellant has done all that could reasonably be done and the proceedings had been permanently missing

Court orders

#
  1. 1.The application to strike out the notice of appeal is dismissed
  2. 2.The respondents are awarded the costs of this application

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. Nos. 3514 and 3515 of 1985
Jurisdiction invoked
Inherent jurisdiction of the Court of Appeal to strike out a notice of appeal for failure to take essential steps in the appeal process (as invoked by the application; no specific constitutional or statutory provision is cited in the ruling)

Relief refused

#

Striking out of the respondents' notice of appeal

The respondents had done all they could to obtain the proceedings, which had been permanently missing until recently

p. 2

Costs

The respondents will have their costs of this application.

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.

We fear that the orders that commands itself to us is that the application be dismissed. The respondents will have their costs of this application.
p. 2Final orders - dismissal of the striking-out application with costs
the respondents have done all that they could possibly do to obtain the proceedings which the applicants cannot deny, had "been permanently missing" until recently
p. 2Diligence by an appellant where proceedings are missing

Issues in the judgment

#
minor

The ruling contains a typographical error in stating the order: "the orders that commands itself to us" appears to be a drafting slip for "the order that commends itself to us"

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "WILLIAM JUMA & ANOTHER vs KENYA BREWERIES LIMITED & ANOTHER [1997] KECA 237 (KLR)", Case Analysis (1997). Civil Application No. NAI 52 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/237/eng@1997-06-10

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