L Z Engineering Construction Limited v Trade Bank Limited (In Liquidation) [2000] KECA 182 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that waiting for certified copies of proceedings does not extend the 60-day deadline to lodge a record of appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether certified copies of the proceedings and ruling are necessary to prepare and lodge a record of appeal
- 2.Whether time taken to obtain certified copies of proceedings and ruling is excluded in computing the 60-day period for instituting an appeal under rule 81(1)
- 3.Whether the notice of appeal should be struck out as a dead-letter for failure to lodge the record of appeal in time
Key legal issues
#Whether certified copies of proceedings and ruling are necessary to lodge a record of appeal
They are not; only the decree or order appealed against must be certified
Reading rules 81(1) and 85(1) of the Court of Appeal Rules together, the court held that the documents required for a record of appeal are the trial Judge's notes of the hearing, the judgment or order, and a certified copy of the decree or order. Certified copies of the proceedings and ruling are not among the necessary documents, and there is no requirement for a signed copy of the ruling.
Whether time spent pursuing certified copies is excluded under the proviso to rule 81(1)
It is not excluded; the proviso cannot be used to extend time by requesting documents that are not needed
The proviso to rule 81(1) excludes time certified by the registrar as required for preparation and delivery of copies of proceedings. But since certified copies of proceedings and rulings are not required to lodge an appeal, time taken to pursue them cannot be excluded. Repeated reminders to the registry for unnecessary documents do not assist a party.
Whether the Equatorial Commercial Bank case applied on selective delivery of copies
Distinguished; the registry's delay there was attributable to selective delivery, whereas here the respondent's advocates had all necessary documents
In Equatorial Commercial Bank the registry selectively delivered copies to the other side and the blame for delay could not lie with the intended appellant. Here, Mr. Esmail had obtained uncertified copies and sent them to the respondent's advocates, who by then had everything needed to lodge the appeal, so the case was distinguishable.
Whether the notice of appeal should be struck out
Yes; the time to lodge the record of appeal had expired and the notice of appeal had become a dead-letter
By the reckoning of the court, the 60-day period for lodging the record of appeal had expired without the respondent taking the essential step of lodging the record. The notice of appeal was therefore struck out with costs to the applicant. The court declined to determine the ancillary question of leave under section 241 of the Companies Act.
Legal principles established
#- Certified copies of proceedings, judgments or rulings are not required to prepare and lodge a record of appeal; only the decree or order appealed against must be certified
- Time needed to obtain certified copies of proceedings and judgments or rulings is not excluded in computing the time for instituting an appeal
- Repeated requests for documents not required to lodge an appeal do not extend the time for lodging the record of appeal
- Where necessary documents are available and an advocate becomes aware of their availability, the advocate is duty bound to obtain them to commence the appeal process
Court orders
#- 1.The notice of appeal is struck out
- 2.The applicant will have the costs of this application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 19 of 1998
- Jurisdiction invoked
- Appellate jurisdiction under the Court of Appeal Rules (application to strike out a Notice of Appeal under the Rules of this Court)
Relief refused
#Determination of the applicant's second point - whether the liquidator properly obtained leave under section 241 of the Companies Act to file and prosecute the intended appeal
Having struck out the notice of appeal, the court found it unnecessary to decide the point
Costs
The applicant will have 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.
a simple reading of them shows that certified copies of the proceedings and the ruling are not necessary to prepare a record of appeal.
Time required to lodge an appeal cannot be extended, in other words, by requests for wrong documents.
If necessary documents are available and the advocate becomes aware of such availability then the advocate becomes duty bound to obtain those documents to start process of mounting the appeal.
According to our reckoning the time to lodge the record of appeal has already expired. The notice of appeal has therefore become a dead-letter. It is ordered struck out.The applicant will have costs of this application.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "L Z Engineering Construction Limited v Trade Bank Limited (In Liquidation) [2000] KECA 182 (KLR)", Case Analysis (2000). Civil Application No. Nai. 196 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/182/eng@2000-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.