Atta (Kenya) Limited v Sultan Hasham Lalji & 7 others [2002] KECA 182 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed an attempt to strike out a notice of appeal as premature because there was no proof that even uncertified court proceedings were ready.
What this practically means
#Executive summary
#Key legal issues
#Whether requests for certified copies extend the time for lodging an appeal under the proviso to Rule 81(1)
The proviso does not distinguish between certified and uncertified copies; certified copies are not required to mount an appeal, so time taken to certify copies is not excluded, but seeking certified copies per se does not disqualify an appellant from the proviso's benefit
The court drew on its prior decisions in L.Z. Engineering and Joreth Limited. The ratio of both is that an appellant who bespeaks certified copies and runs out of time is out of time by the extra days taken for certification, unless the appeal is lodged within 60 days of delivery of the certified copies. Here there was no evidence that even uncertified copies were ready, so it could not be determined that the 60-day period had expired.
Whether service of the bespeaking letter by post rather than personal service on the eighth respondent was defective
Rule 85(2) provides for 'sending' rather than service of the copy, and Rule 17(5) permits sending by hand or registered post; there was no evidence of non-posting and the eighth respondent did not object, so the point failed
Counsel for the applicant argued that rule 17(1) mandated personal service. The court held that rule 85(2) uses the word 'sending', and rule 17(5) allows sending by hand or registered post. There was no evidence the letter was not posted, the eighth respondent did not state its position or object, and counsel properly did not press the point.
Legal principles established
#- Certified copies of proceedings are not required to mount an appeal; the proviso to Rule 81(1) refers merely to 'copies', and seeking certified copies per se does not disqualify an appellant from the benefit of the proviso
- Only the time required for preparation and delivery of the copies needed to lodge an appeal is excluded in computing the 60-day period; time taken to certify copies, or to obtain a certificate of delay, is not excluded
- If an appellant bespeaks certified copies and runs out of time, the appeal is out of time by the extra days taken to certify the copies, unless lodged within 60 days of delivery of such certified copies
- A notice of appeal which is still sustainable should not be struck out where there is no evidence that uncertified copies were available so as to fix the expiry of the 60-day period
Court orders
#- 1.The application to strike out the notice of appeal is dismissed as premature
- 2.No order as to costs
- On appeal from
- High Court of Kenya at Nairobi
- Jurisdiction invoked
- Inherent/appellate jurisdiction of the Court of Appeal under the Court of Appeal Rules (application to strike out a notice of appeal under Rule 81 of the Court of Appeal Rules)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Atta (Kenya) Limited v Sultan Hasham Lalji & 7 others [2002] KECA 182 (KLR)", Case Analysis (2002). Civil Application No. NAI. 157 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/182/eng@2002-04-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.