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Court of AppealDismissedCivil Application No. NAI. 157 of 2001

Atta (Kenya) Limited v Sultan Hasham Lalji & 7 others [2002] KECA 182 (KLR)

Court of Appeal of Kenya
26 April 2002
1,416 words in judgment
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The bottom line

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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

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Executive summary

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This was an application by Atta (Kenya) Limited, the third defendant in the superior court, to strike out a notice of appeal lodged by the first three respondents against a ruling of the High Court (O'Kubasu, J) dated 21 July 2000. The notice of appeal was lodged on 2 August 2000, within time, and the intending appellants' advocates bespeaking certified copies of the proceedings and ruling on 3 August 2000. The applicant argued that because certified copies are not required in a record of appeal, the intending appellants could not rely on the proviso to Rule 81(1) and the appeal ought to have been lodged by 2 October 2000. A preliminary point on service by post on the eighth respondent was properly abandoned, the court holding that Rule 85(2) requires 'sending' not service, and Rule 17(5) permits sending by registered post. On the main issue, the court applied its earlier decisions in L.Z. Engineering Construction Limited v Trade Bank Limited and Joreth Limited v Kigano & Associates, together with Republic v Minister for Transport & Communications ex-parte Kenya Consumers Organization, holding that the proviso refers merely to 'copies'; certified copies are not required to mount an appeal, and time taken to certify copies is not excluded in computing the 60-day period. However, unlike L.Z. Engineering, there was here no evidence that even uncertified copies were available, so it could not be said the appeal was out of time. The application was dismissed as premature, with no order as to costs, the respondents not having deponed that they had still not received even uncertified copies.

Key legal issues

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01

Whether requests for certified copies extend the time for lodging an appeal under the proviso to Rule 81(1)

Holding

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

Reasoning

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.

p. 3
02

Whether service of the bespeaking letter by post rather than personal service on the eighth respondent was defective

Holding

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

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The application to strike out the notice of appeal is dismissed as premature
  2. 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

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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, "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.