M M J Kisoso v Express Kenya Limited & another [2000] KECA 376 (KLR)
The bottom line
#Kenya's Court of Appeal refused to kill an appeal over filing delays, because the other side's own actions partly caused the holdup.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the notice of appeal should be struck out under rule 80 of the Court of Appeal Rules on the ground that no record of appeal was filed within the prescribed time and the notice has ceased to be in existence.
- 2.Whether the respondents were solely to blame for the delay in filing the record of appeal, given the pending review application, the temporary unavailability of the court file and the mistaken request for certified copies of the proceedings.
Key legal issues
#Whether a notice of appeal should be struck out under rule 80 where no record of appeal has been filed within the prescribed time.
The application to strike out was refused. Although no record of appeal had been filed within the prescribed time and no extension of time was pending or granted, the court declined to strike out the notice because the respondents were not solely to blame for the delay.
The respondents applied to the Deputy Registrar for copies of the proceedings on 22 December 1999, the day after judgment, copying the request to the applicant under rule 81. The applicant's own review application kept the file unavailable from 26 January to 6 March 2000. The respondents then mistakenly applied for certified copies, which take longer than ordinary copies, and the corrected proceedings had still not been made available to them. On that affidavit material the court could not find the respondents solely at fault, so the salutary objective of speedy litigation did not justify striking out the notice.
The standard of diligence expected of a party who has given notice of appeal but has not yet filed the record of appeal.
A party is expected to show the diligence expected of a reasonable litigant in prosecuting an appeal; where the delay is explained by factors for which that party is not solely responsible, the court will not treat the notice of appeal as having lapsed.
The court weighed the rival affidavits: the prompt request for proceedings under rule 81, the applicant's review application which removed the file from the registry for over a month, and the respondents' mistaken but not wholly blameworthy request for certified copies. Because a substantial part of the delay was attributable to the applicant's own application and to registry processes, the respondents could not be said to have shown less diligence than expected. The court coupled this with an exhortation that all parties act diligently to conclude litigation quickly.
Legal principles established
#- A notice of appeal will not be struck out under rule 80 of the Court of Appeal Rules where the party in default is not solely to blame for the failure to file the record of appeal within the prescribed time.
- Parties to litigation are expected to take all steps diligently so that litigation is concluded as soon as possible.
Court orders
#- 1.The application to strike out the notice of appeal is dismissed.
- 2.Costs of the application shall abide the appeal.
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. 2865 of 1993
- Jurisdiction invoked
- Rule 80 of the Court of Appeal Rules, under which the application to strike out a notice of appeal in an intended appeal from the High Court was brought; no constitutional provision was invoked.
Relief refused
#Striking out of the notice of appeal under rule 80 of the Court of Appeal Rules
The respondents were not solely to blame for the delay in filing the record of appeal and showed the diligence expected of them; the delay was partly attributable to the applicant's own review application and to the respondents' mistaken request for certified copies.
Costs
Costs of the application shall abide the appeal.
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.
an application has now been made on behalf of the plaintiff under rule 80 of the Court of Appeal Rules to strike out the notice of appeal since it has ceased to be in existence as no record of appeal was filed within the prescribed time.
We have carefully considered these rival submissions and are satisfied that the respondents are not solely to blame for the delay in the matter.
We are not persuaded that the respondents have shown in the circumstances less diligence than is expected of them.
It is salutary to have litigation concluded as soon as passible and we trust that all steps will be taken diligently by the parties to ensure that this happens.
We are, however, unable to accede to the application which must be dismissed. Costs of the application shall abide the appeal.
Issues in the judgment
#Typographical error in the judgment: 'passible' appears where 'possible' is plainly intended, which may affect verbatim quote retrieval.
The style of the application lists two respondents (Express Kenya Limited and Ali Bakari Ali) but the ruling's narrative refers only to 'the defendant' as the party who gave the notice of appeal, without stating Ali Bakari Ali's role or interest.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "M M J Kisoso v Express Kenya Limited & another [2000] KECA 376 (KLR)", Case Analysis (2000). Civil Application No. NAI. 174 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/376/eng@2000-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.