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Court of AppealDismissedCivil Application No. NAI 362 of 1996

Freight Forwarders Kenya Limited v Official Receiver and Liquidator [1997] KECA 312 (KLR)

Court of Appeal
18 September 1997
444 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to strike out an appeal because the appellant diligently chased court documents and held a Certificate of Delay proving the delay wasn't its fault.

What this practically means

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Executive summary

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This was an interlocutory application before the Court of Appeal at Nairobi under rule 80 of the Court of Appeal Rules, by which Freight Forwarders Kenya Limited sought to strike out a notice of appeal lodged by the Official Receiver and Liquidator on May 20, 1996, following a ruling of the High Court (Justice Shah) dated June 23, 1994 in H.C. Winding Up Cause No. 6 of 1981. The applicant complained that no record of appeal had been filed. The respondent's advocate replied by affidavit, deponing to diligent personal efforts, including repeated visits to the High Court registry and letters of November 20, 1996 and February 5, 1997, to obtain copies of the proceedings and ruling. A Certificate of Delay, produced from the Bar without objection, showed that the copies were ready for collection only on September 5, 1997, on which day they were collected. The court, coram Gicheru, Akiwumi and Lakha, JJ.A., in a single ruling of the court, held that the respondent had at all times made diligent efforts without laxity and had evinced a serious intention to pursue its right of appeal. In the result the application to strike out was dismissed with costs, and the respondent was ordered to file its appeal on or before October 6, 1997. The ruling binds subordinate courts on the significance of a Certificate of Delay and demonstrated diligence in resisting striking-out applications under rule 80.

Questions the Court framed

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

  1. 1.Whether the respondent's notice of appeal should be struck out for want of prosecution, i.e. whether time to file the appeal had lapsed
  2. 2.Whether the respondent made diligent efforts to obtain copies of the proceedings and ruling so as to be protected by the Certificate of Delay

Key legal issues

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01

Whether time to file the record of appeal had lapsed so as to justify striking out the notice of appeal

Holding

The application to strike out failed because the respondent made diligent efforts to obtain the proceedings and ruling and produced an unchallenged Certificate of Delay showing the copies were only ready for collection on September 5, 1997.

Reasoning

The respondent's advocate deponed to personal visits to the High Court registry and written letters seeking copies of the proceedings and ruling. A Certificate of Delay produced from the Bar without objection certified when the copies became available. On those facts the court found no laxity and a serious intention to pursue the appeal, so time had not lapsed and striking out was unwarranted; the respondent was instead given a fixed date to file the appeal.

p. 1

Legal principles established

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  • A notice of appeal will not be struck out where the applicant shows diligent efforts to obtain copies of the proceedings and ruling and a Certificate of Delay establishes that time had not lapsed.

Court orders

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  1. 1.The notice of motion dated November 15, 1996 is dismissed with costs
  2. 2.The respondent is ordered to file its appeal on or before October 6, 1997

The bench

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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. Winding Up Cause No. 6 of 1981
Jurisdiction invoked
Rule 80 of the Court of Appeal Rules (application to strike out a notice of appeal)

Relief refused

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The applicant's application to strike out the respondent's notice of appeal

The court was satisfied that the respondent made diligent efforts to obtain the proceedings and ruling and evinced a serious intention to pursue the appeal, and a Certificate of Delay was produced

p. 1

Costs

The notice of motion dated November 15, 1996 is dismissed with costs (costs to the respondent).

Quotable passages

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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 are satisfied that the respondent at all times made diligent efforts to obtain copies of the proceedings and ruling without any laxity on its part and at all times evinced a serious intention to pursue its right of appeal.
p. 1Diligence in obtaining proceedings defeats an application to strike out a notice of appeal
In the result and, in the face of the Certificate of Delay now made available, we are satisfied that the application to strike out must fail. Accordingly, the notice of motion dated November 15, 1996 is dismissed with costs.
p. 2Final orders - dismissal of the striking-out application with costs
The respondent is ordered to file its appeal on or before October 6, 1997.
p. 2Final orders - extended time for filing the appeal

Issues in the judgment

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minor

The ruling refers to the application as filed on November 27, 1996 but the dismissal order refers to a notice of motion dated November 15, 1996; the dates do not reconcile on the face of the judgment.

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, "Freight Forwarders Kenya Limited v Official Receiver and Liquidator [1997] KECA 312 (KLR)", Case Analysis (1997). Civil Application No. NAI 362 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/312/eng@1997-09-18

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