Mombasa Cashewnut Processors Ltd & another v Nyari Investment Ltd & another [2004] KECA 81 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed an appeal filed after certification of court proceedings was still on time, because the deadline runs from when parties receive the collection notice.
What this practically means
#Executive summary
#Key legal issues
#Whether the appeal was filed out of time — from what date time begins to run where certified proceedings must first be collected
Time begins to run from the date the party receives the Deputy Registrar's letter notifying that the certified proceedings and ruling are ready for collection upon payment of court fees, not from the date of certification. An appeal filed within the prescribed period after that receipt is filed in time.
The Certificate of Delay showed that the application for uncertified copies of the proceedings and ruling was lodged on 27 November 2002, and that by letter dated 16 June 2003 the Deputy Registrar notified the appellants' advocates that the copies were ready for collection upon payment of court fees; the fees were paid and the copies collected the same day, and the letter was copied to the applicant's advocates. The court agreed with counsel for the appellants that the prescribed period ran from receipt of that letter, so the appeal lodged on 26 July 2003 was within time notwithstanding the earlier certification of the proceedings.
Whether a Notice of Appeal is invalid because it does not state when it was lodged and is not signed by the Deputy Registrar
No. Rule 74(6) requires only that a notice of appeal be substantially in Form D of the First Schedule and signed by or on behalf of the appellant; the registrar's endorsement of signature and affixation of the court seal are administrative and their absence does not invalidate the notice.
The court perused the notice of appeal in the record and compared it with Form D in the First Schedule of the Rules, satisfying itself that the notice was valid. It endorsed its own recent ruling at Nyeri in Kenya Bus Services Ltd (Stage Coach Bus Service v Muna Isaack), which held that the operative date is that on which the notice of appeal is filed and the requisite fees paid, and that the date of the registrar's signature and seal is not material for service of the notice. Counsel for the appellants had argued that requiring the registrar's signature would in most cases put parties out of time, and the court accepted that the signature was purely administrative.
Legal principles established
#- In computing the prescribed period for filing an appeal where certified proceedings must first be obtained, time runs from the date the party receives the Deputy Registrar's letter notifying that the certified proceedings are ready for collection upon payment of court fees, not from the date the proceedings were certified.
- A notice of appeal complies with Rule 74(6) if it is substantially in Form D of the First Schedule and signed by or on behalf of the appellant; the date on which the Deputy Registrar endorses his signature and affixes the seal of the court is not material to the notice, the registrar's signature being purely administrative.
Court orders
#- 1.The application to strike out the appeal is dismissed.
- 2.Costs of the application to be in the appeal, the application not being frivolous.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 1987 of 2001
- Jurisdiction invoked
- Rules 80, 81 and 42 of the Court of Appeal Rules (notice of motion to strike out the appeal); no constitutional provision cited. The court exercised its appellate jurisdiction over the pending appeal from the High Court of Kenya at Nairobi (H.C.C.C. No. 1987 of 2001) and construed Rule 74(6) of the Court of Appeal Rules.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mombasa Cashewnut Processors Ltd & another v Nyari Investment Ltd & another [2004] KECA 81 (KLR)", Case Analysis (2004). Civil Appeal No. 180 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2004/81/eng@2004-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.