WILFRED ODHIAMBO MUSINGO V HABO AGENCIES LIMITED [2003] KECA 107 (KLR)
The bottom line
#Kenya's Court of Appeal held that a party isn't penalised for appeal delays caused by the court registry rather than by their own lawyers.
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 respondent's notice of appeal was lodged within the stipulated time.
- 2.Whether the record of appeal was lodged within the time stipulated in rule 81 of the Court of Appeal Rules, having regard to the date on which the copies of the proceedings and ruling were made available to the respondent's advocates.
- 3.Whether the delay in posting the letter of 16th May 2002 notifying the advocates that the proceedings and ruling were ready for collection was attributable to the respondent's advocates.
- 4.Whether the Court could look behind the correctness of the Certificate of Delay issued by the Deputy Registrar and whether that certificate was flawed.
Key legal issues
#Whether the notice of appeal and the application for proceedings were lodged within the stipulated time.
Yes. The notice of appeal was lodged in the superior court on 22nd August 2001 and copies of the proceedings and ruling were applied for on 16th August 2001, both within the stipulated time.
The respondent's defence had been struck out on 15th August 2001 by Khamoni J for want of service within seven days as mandated by Order VIII rule 1(2) of the Civil Procedure Rules. The notice of appeal against that ruling was lodged in the superior court on 22nd August 2001 and the copies of the proceedings and ruling were applied for the day after the ruling was delivered. The court recorded that both steps were within the stipulated time, so the impugned notice was itself regular and the attack had to rest on the lodging of the record of appeal.
Whether the record of appeal was lodged within the time prescribed by rule 81 of the Court of Appeal Rules.
Yes. The appeal filed on 1st November 2002 was within 60 days of the date when the copies of the proceedings and ruling were delivered, and the delay in posting the notification letter of 16th May 2002 could not be laid at the door of the respondent's advocates.
The superior court's letter of 16th May 2002 told the respondent's advocates that the copies were ready for collection on payment of Shs.990/=. Although addressed to a Nairobi post office box, the advocates have no offices in Nairobi and the box number is a Mombasa number, and the letter was not posted until 4th September 2002, as Mr. Asige deponed and the Deputy Registrar's Certificate of Delay confirmed. Because that default was not the advocates', the blame could not be laid at their door, and the filing of the appeal on 1st November 2002 fell within the 60-day period.
Whether the Court could look behind the correctness of the Certificate of Delay and whether that certificate was flawed.
The Court has power to look behind the correctness of a certificate of delay, but on the facts it detected no flaw in the Deputy Registrar's certificate of 25th September 2002 to warrant a finding that it was incorrect.
Mr. Tiego, for the applicant, urged that it was unbelievable that a letter dated 16th May 2002 could not be posted until 4th September 2002, challenged the genuineness of the notes of visits to the registry made by Mr. Kenyonzo and his clerk Mr. Mulindi, and attacked the certificate itself, invoking Kanyago & 2 others vs. Mereka. The court acknowledged that it has those powers, examined the certificate and found nothing in it warranting a declaration of incorrectness. The evidential attack therefore failed for want of any demonstrated flaw.
Legal principles established
#- Where the delay in making proceedings and a ruling available to an appellant's advocates is caused by the court registry - such as the late posting of a letter notifying the advocates that the copies are ready - and not by the appellant, an appeal filed within 60 days of the delivery of the copies is lodged within the time stipulated by rule 81 of the Court of Appeal Rules.
- The Court of Appeal has power to look behind the correctness of a certificate of delay, but it will only fault such a certificate where a flaw in it is demonstrated.
Court orders
#- 1.This application is dismissed with costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 2047 of 2000
- Jurisdiction invoked
- Rule 81 of the Court of Appeal Rules ('the Rules of this Court') - the stipulated time for lodging appeals - on whose breach the application to strike out the notice of appeal was founded; no constitutional provision is invoked.
Relief refused
#An order striking out the notice of appeal lodged by Habo Agencies Limited
The notice of appeal and the application for proceedings were lodged in time; the late posting of the letter of 16th May 2002 was not the fault of the respondent's advocates; the appeal filed on 1st November 2002 fell within 60 days of delivery of the copies of the proceedings and ruling; and no flaw was detected in the Certificate of Delay.
Costs
This application is dismissed with costs.
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.
This application is dismissed with costs.
As we see it, the letter of 16th May, 2002 was, for one reason or another, not posted until 4th September, 2002 and we cannot lay the blame therefor at the door of the respondent's advocates.
According to both counsel the appeal itself was filed on 1st November, 2002. That is within 60 days of the date when the copies of the proceedings and ruling were delivered.
We have those powers but in this instance we cannot detect any flaw in the certificate of delay to warrant our saying that it was incorrect.
Despite Mr. Tiego's spirited urgings that the appeal was lodged out of time we cannot see it that way.
Issues in the judgment
#The name of the advocate said to have appeared for the respondent on behalf of Mr. Asige is spelled inconsistently within the same passage - 'Mr. Kenyonzo' and then 'Mr. Keyonzo' (and 'inquires' appears where 'enquiries' is meant) - which may affect name-based retrieval and matching.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "WILFRED ODHIAMBO MUSINGO V HABO AGENCIES LIMITED [2003] KECA 107 (KLR)", Case Analysis (2003). Civil Application No. Nai. 254 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2003/107/eng@2003-04-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.