Kenya Commercial Bank v Charles Otiso Otundo [2002] KECA 190 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that appeal time limits run from when you actually receive court proceedings, not when a notification letter arrives.
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 appeal was filed out of time without leave
- 2.Whether an essential step in the proceedings had not been taken
- 3.Whether the certificate of delay was defective
- 4.Whether the letter bespeaking copies of proceedings and the ruling appealed against had to be included in the record of appeal
Key legal issues
#Time of filing of appeal where proceedings are typed and supplied after judgment
The appeal lodged on 8th June 2000 was filed in time because time runs from actual receipt of the proceedings and ruling on 12th April 2000, not from receipt of the letter informing of their availability.
The respondent's counsel argued that proceedings are deemed received when the notification letter is received, which would render the appeal out of time. The court rejected this as fallacious, holding that the operative date is the actual receipt of the copies of proceedings and ruling by the appellant's advocates, as the certificate of delay sets out.
Contents of the record of appeal
A letter bespeaking copies of proceedings and the ruling appealed against need not be included in the record of appeal; the certificate of delay sets out the relevant dates.
One ground of the striking-out application was the absence of the bespeaking letter from the record. The court held there is no such requirement, and that the certificate of delay, which sets out the dates of the letters and the date of receipt of the proceedings and ruling, is sufficient and was in order.
Validity of the certificate of delay
The certificate of delay was not defective; it correctly set out the dates of the letters in question and the date of receipt of the proceedings and ruling.
The court examined the certificate of delay and found it properly recorded the dates of the relevant letters and the date the appellant's advocates received the proceedings and ruling, thereby disposing of the ground alleging defectiveness.
Legal principles established
#- Proceedings are deemed received by a party's advocates on the date the copies of proceedings and ruling are actually received, not on the date a letter informing of their availability is received.
- There is no requirement that a letter bespeaking copies of proceedings and the ruling be included in the record of appeal; the certificate of delay suffices to set out the relevant dates.
Court orders
#- 1.The respondent's application to strike out the appeal is dismissed
- 2.Costs of the application awarded to the appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisii
- H.C.C.C. No. 331 of 1996
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over the decree of the High Court at Kisii (the ruling does not cite a specific constitutional or statutory provision)
Relief refused
#Striking out of the appeal (Civil Appeal No. 198 of 2000)
The application was misconceived: the appeal was lodged in time, the certificate of delay was in order, and there is no requirement to include the bespeaking letter in the record of appeal
Costs
The application is dismissed with costs (costs to the appellant, against the respondent who brought the 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.
The appeal having been lodged on 8th June, 2000 is filed in time.
There is no requirement for the inclusion of a copy of the letter bespeaking copies of proceedings and ruling in the record of appeal.
This application is misconceived and is dismissed with costs.
Issues in the judgment
#The body of the ruling refers to the appeal as 'Civil Appeal No. 1998 of 2000' while the heading states 'CIVIL APPEAL NO. 198 OF 2000'; the heading is presumably correct and the body reference appears to be a typographical error.
The text contains typographical errors ('fallacions' for 'fallacious', 'apepaled' for 'appealed', 'requite' for 'requisite') and fragmented spacing, apparently from a scanned copy.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Kenya Commercial Bank v Charles Otiso Otundo [2002] KECA 190 (KLR)", Case Analysis (2002). Civil Appeal No. 198 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/190/eng@2002-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.