Omega Enterprises (Kenya) Limited v Eldoret Sirikwa Hotel Limited & 2 others [2001] KECA 152 (KLR)
The bottom line
#Kenya's Court of Appeal postponed a hearing so a party could verify the record and file its own appeal; court-caused delays don't count against litigants.
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 hearing of the appeal should be adjourned to enable the first respondent to compare the record of appeal with the proceedings and judgment supplied by the superior court and to lodge an appeal or cross-appeal.
- 2.Whether the first respondent remained within time to lodge an appeal or cross-appeal, given that the superior court only notified counsel on 13th November, 2001 that the proceedings and judgment were ready for collection.
Key legal issues
#Whether the hearing of the appeal should be adjourned to enable the first respondent to verify the record of appeal and lodge an appeal or cross-appeal.
Yes. The appeal was taken out of the cause list and stood over generally to a new date to be fixed in the Registry, with the costs of the adjournment to be in the appeal in any event.
Counsel for the first respondent had filed a Notice of Appeal within the prescribed time and applied for the proceedings and judgment, but was only notified on 13th November, 2001 that they were ready for collection. The appeal before the court rested on a record prepared by the appellant's counsel, whose veracity the first respondent doubted and wished to compare against the court's own record. The court held that neither counsel could be faulted and that the respondent's interests had to be weighed against the appellant's expedition, justifying the adjournment sought.
Whether the first respondent remained within time to lodge an appeal or cross-appeal.
Yes. The operative date for lodging the appeal is the date shown on the superior court's letter of 13th November, 2001, and time for the first respondent had not run out.
The court accepted that the first respondent's counsel had done all that was required of him: he filed a Notice of Appeal within the prescribed time and applied for the proceedings and judgment. The delay lay with the superior court, which only signified readiness for collection on 13th November, 2001. Counsel was entitled to rely on that letter, which fixed the operative date for lodging an appeal, so the first respondent still had time to lodge an appeal or cross-appeal if advised.
Legal principles established
#- Where a party has filed a Notice of Appeal within the prescribed time and applied for the proceedings and judgment, that party is entitled to rely on the superior court's notification of when they are ready for collection, and the operative date for lodging the appeal or cross-appeal runs from the date shown on that notification.
- In deciding whether to adjourn an appeal, the court must weigh the appellant's expedition in lodging the appeal against the interests of a respondent who has not yet had access to the certified proceedings and wishes to verify the record or lodge a cross-appeal.
Court orders
#- 1.The appeal is taken out of the cause list and stood over generally to a new date to be fixed in the Registry.
- 2.The costs occasioned by the adjournment shall be in the appeal in any event.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- H.C.C.C. No. 50 of 1999
- Jurisdiction invoked
- No constitutional or statutory provision is cited in the ruling; the matter was before the Court of Appeal at Nairobi as Civil Appeal No. 235 of 2001, an appeal from the judgment and decree of the High Court (Ringera, J.) in H.C.C.C. No. 50 of 1999.
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.
For the above reasons this appeal is taken out of today's cause list and stood over generally to a new date to be fixed in the Registry. The costs occasioned by this adjournment shall be in the appeal in any event.
They were entitled to rely on it and by doing so the operative date for lodging of appeal is as shown thereon. They still had time and time for them had not run out to take any action they wished to.
While we commend Mr. Esmail for the expedition with which he lodged this appeal, we must also consider the interests of the first respondent and others.
No doubt, the letter of 13th November, 2001 causes us some concern. Neither Mr. Kipkorir nor Mr. Le Pelley can be faulted.
Issues in the judgment
#Typographical duplication in the text of the ruling: the phrase 'wanted to cross check and examine' appears twice consecutively in the same sentence.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (5)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Housing Finance Company of Kenya v Sharok Kher Mohamed Ali Hirji & another [2019] KECA 166 (KLR)[2019] KECA 166 (KLR)22 Nov 2019applied
- Ol Pejeta Ranching Ltd v Muhoro (Civil Appeal 42 of 2015) [2017] KECA 329 (KLR)[2017] KECA 329 (KLR)22 Sept 2017applied
- Mumba & 7 others (Sued on their own Behalf and on Behalf of Predecessors and or Successors in Title in their Capacities as the Registered Trustees of Kenya Ports Authority Pensions Scheme) v Munyao & 148 others (Suing on their own Behalf and on Behalf of the Plaintiffs and other Members/Beneficiaries of the Kenya Ports Authority Pension Scheme) (Civil Appeal 38 of 2014) [2016] KECA 160 (KLR)[2016] KECA 160 (KLR)26 Feb 2016applied
- Andrew Peter Ngirichi & another v Wanje Masha Wanje [2015] KECA 525 (KLR)[2015] KECA 525 (KLR)17 Jul 2015applied
- Diamond Trust Bank Kenya Ltd v Said Hamad Shamisi & 2 others [2015] KECA 717 (KLR)[2015] KECA 717 (KLR)15 May 2015applied
Cite this brief
#Cite this brief
Caselaw, "Omega Enterprises (Kenya) Limited v Eldoret Sirikwa Hotel Limited & 2 others [2001] KECA 152 (KLR)", Case Analysis (2001). Civil Appeal No. 235 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/152/eng@2001-12-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.