DT Dobie & Co (Kenya) Limited v Alfred Machayo [2005] KECA 95 (KLR)
The bottom line
#Kenya's Court of Appeal threw out D.T. Dobie's late appeal: deadlines run from the original decision, not from when permission to appeal is granted.
What this practically means
#Executive summary
#Key legal issues
#Computation of time under the proviso to Rule 81(1) of the Court of Appeal Rules
The reference point for the 30-day application for copies of proceedings is the decision intended to be appealed against, not the date leave to appeal is granted; the respondent applied for copies about three years after the decision and therefore could not invoke the proviso.
The court held that the superior court's power under section 7 of the Appellate Jurisdiction Act extends only to extension of time for giving notice of intention to appeal, and all other procedures are governed by the Court of Appeal Rules. The ruling granting leave on 3rd June 2003 was not a decision intended to be appealed against and was irrelevant to computation of time. Since the application for copies came roughly three years after the 19th July 2000 decision, the proviso could not save the appeal, and the period was unexplained.
Effect of a defective certificate of delay
A certificate of delay that misstates the decision from which time runs 'tells a lie about itself' and does not accord with the rules; it cannot avail an intending appellant.
The certificate issued by the Deputy Registrar computed the excluded period from 13th June 2003 (the date of application for copies) to 4th October 2004, premised on the leave ruling of 3rd June 2003 rather than the decision of 19th July 2000 appealed against. Because the foundation of the certificate was wrong, the certified 479 days could not be excluded. Only a letter bespeaking copies within 30 days of the impugned decision, copied to the other side, would have saved the appeal.
Legal principles established
#- An appeal must be instituted within 60 days of lodging the notice of appeal under Rule 81; only the period strictly covered by the proviso - time certified for preparation of copies applied for within 30 days of the decision appealed against - is excluded from computation of time.
- Time under the proviso to Rule 81(1) runs from the decision intended to be appealed against, not from the date leave to appeal out of time is granted.
- Certified copies are not required for purposes of Rule 81, which merely refers to a copy of the proceedings; periods taken in obtaining the certificate of delay, certification of proceedings, or drafting the order appealed against fall outside the exclusion.
Court orders
#- 1.Civil Appeal No. 254 of 2004 filed on 19th November 2004 is struck out
- 2.Costs of the appeal to the respondent in that appeal
- 3.The applicant (D.T. Dobie & Co (Kenya) Limited) shall have costs of this application
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 210 of 1996
- Jurisdiction invoked
- Rule 81 of the Court of Appeal Rules; section 7 of the Appellate Jurisdiction Act, Cap 9
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kang'ethe & Co. Advocates v Singh Gitau & Another[2015] KEHC 8294 (KLR)26 Jun 2015
- Plaintiff v Defendant (ruling on preliminary objection against Defendant's Notice of Motion dated 13th August 2012)[2012] KEHC 607 (KLR)21 Nov 2012followed
Cite this brief
#Cite this brief
Caselaw, "DT Dobie & Co (Kenya) Limited v Alfred Machayo [2005] KECA 95 (KLR)", Case Analysis (2005). Civil Application 337 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/95/eng@2005-10-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.