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Court of AppealPartially AllowedCivil Application No. Nai. 254 of 2001

Shirley Luckhurst v K.H. Osmond Advocate & another [2002] KECA 242 (KLR)

Court of Appeal
28 May 2002
ALA. A. LakhaEOE. OwuorEOE. O. O'Kubasu
214 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out a late Notice of Appeal because the party could not prove it had sent a letter requesting court proceedings to the other side.

What this practically means

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Executive summary

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This is a short ruling of the Court of Appeal at Nairobi (Lakha, Owuor and O'Kubasu, JJ.A) delivered on 28th May 2002 in Civil Application No. Nai. 254 of 2001. The applicant, Shirley Luckhurst, applied to strike out a Notice of Appeal filed on 24th May 2000 in an intended appeal from the ruling of the High Court of Kenya at Nairobi (Githinji, J) dated 17th May 2000 in H.C.C.C No. 3012 of 1997 (O.S), on the ground that the time for filing the intended appeal had expired. The respondents apparently sought to rely on the proviso to Rule 81(2) of the Court of Appeal Rules, invoking an alleged letter requesting proceedings from the registry. The court held that, in the absence of any evidence that the alleged letter was indeed received and copied to the applicant, the time for filing had expired and the respondents could not take advantage of the proviso to Rule 81(2). The court accordingly struck out the Notice of Appeal with costs to the applicant. The ruling binds lower courts and parties to the standard that a party invoking the proviso to Rule 81(2) must prove actual receipt of the letter requesting proceedings, not merely assert it. No external authorities were cited in the ruling.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the time for filing the intended appeal had expired such that the Notice of appeal should be struck out
  2. 2.Whether the respondents could take advantage of the proviso to Rule 81(2) on the basis of an alleged letter requesting proceedings from the registry

Key legal issues

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01

Whether the proviso to Rule 81(2) of the Court of Appeal Rules was available to save an out-of-time Notice of Appeal

Holding

The proviso was unavailable because there was no evidence that the letter requesting proceedings from the registry was received and copied to the applicant; the time for filing had expired and the Notice of Appeal was struck out.

Reasoning

The application sought striking out of the Notice of Appeal filed on 24th May 2000 on the ground that the time for filing the intended appeal had expired. The respondents relied on the proviso to Rule 81(2), apparently on the basis of an alleged letter requesting proceedings from the registry. The court found no evidence that such letter was received and copied to the applicant, so the proviso could not assist the respondents and the time had expired.

p. 2

Legal principles established

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  • A party relying on the proviso to Rule 81(2) to extend the period within which a Notice of Appeal may be deemed filed must adduce evidence that a letter requesting proceedings from the registry was actually received and copied to the other party; mere assertion is insufficient.

Court orders

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  1. 1.The Notice of appeal filed on 24th May, 2000 is struck out
  2. 2.Costs of the application to the applicant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AL
majority
EO
majority
EO
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C No. 3012 of 1997 (O.S)
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(2))

Relief refused

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The respondents' opportunity to pursue the intended appeal under the proviso to Rule 81(2)

No evidence that the alleged letter requesting proceedings from the registry was received and copied to the applicant

p. 2

Costs

Costs of the application to the applicant

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We are satisfied and in the absence of any evidence that the alleged letter requesting for the proceedings from the registry was indeed received and copied to the applicant, the time has expired and the respondents cannot take advantage of the proviso to Rule 81(2).
p. 2Burden of proof under proviso to Rule 81(2)
In that regard, the Notice of appeal is hereby struck out with costs to the applicant.
p. 2Final orders - striking out of Notice of Appeal

Issues in the judgment

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minor

The coram lists 'LAKHA' but the signature block reads 'A. A. LAKH', an apparent typographical discrepancy in the judge's name.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Shirley Luckhurst v K.H. Osmond Advocate & another [2002] KECA 242 (KLR)", Case Analysis (2002). Civil Application No. Nai. 254 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/242/eng@2002-05-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.