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Court of AppealDismissedCivil Application No. Nai. 260 of 1999· [1999] KECA 121 (KLR)

JOEL MUTHUI KYAMBU vs UNITED FINANCE LIMITED [1999] KECA 121 (KLR)

Court of Appeal
7 December 1999
JGJ. E. GicheruRKR. O. KwachPhilip Kiptoo TunoiP. K. Tunoi
359 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that a delay in filing an appeal caused by the High Court itself does not invalidate the appeal.

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, brought by Joel Muthui Kyambu, acting in person, seeking to strike out a Notice of Appeal lodged by United Finance Limited on 9th October, 1998 on the ground that the appeal had not been filed within the time prescribed by the Rules. The applicant also sought to set aside stay orders pending appeal granted by the High Court on 20th November, 1998. The intended appeal was from a judgment of the High Court of Kenya at Nairobi (Pall, J.) dated 8th September, 1991 in H.C.C.C. No. 3782 of 1991. Counsel for the respondent filed a comprehensive replying affidavit detailing the steps taken towards lodging the appeal, which had been registered as C.A. No. 252 of 1999. The court, comprising Gicheru, Kwach and Tunoi, JJ.A., in a single ruling of the whole bench, was satisfied that the respondent had fully complied with the rules relating to filing an appeal. It found that the superior court had delayed in supplying the necessary papers, and that the Certificate of Delay dated 11th November, 1999 fully explained the position. The respondent was held not guilty of laches and to have acted diligently throughout. The application was dismissed with costs. Expressing sympathy for the applicant, whose pursuit of justice dated back to 1991, the court directed that appeal C.A. No. 252 of 1999 be heard on a priority basis. No authorities were cited in the ruling.

Key legal issues

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Whether an appeal is out of time where the delay in lodging it is attributable to the superior court's delay in supplying the necessary papers

Holding

The appeal was lodged within time; the respondent was not guilty of laches and the Certificate of Delay fully explained the position.

Reasoning

The court examined counsel's replying affidavit detailing the steps taken towards lodging the appeal, which was registered as C.A. No. 252 of 1999. It found full compliance with the rules relating to filing an appeal. The superior court's delay in supplying the necessary papers, evidenced by the Certificate of Delay dated 11th November, 1999, accounted for the elapsed time, so the notice of appeal could not be struck out.

p. 2

Legal principles established

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  • A party who acts diligently in lodging an appeal, and whose delay is attributable to the superior court's delay in supplying the necessary papers as evidenced by a Certificate of Delay, is not guilty of laches and the appeal is deemed filed within the parameters of the rules.

Court orders

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  1. 1.The applicant's application to strike out the Notice of Appeal is dismissed with costs
  2. 2.Appeal C.A. No. 252 of 1999 to be heard on a priority basis
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 3782 of 1991
Jurisdiction invoked
Rule 80 of the Court of Appeal Rules (application for striking 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, "JOEL MUTHUI KYAMBU vs UNITED FINANCE LIMITED [1999] KECA 121 (KLR)", Case Analysis (1999). Civil Application No. Nai. 260 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/121/eng@1999-12-07

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