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Court of AppealDismissedCivil Appli NAI 39 of 2005· [2005] KECA 171 (KLR)

Peter Kinyua Muchendu v Getrude Chao Waita [2005] KECA 171 (KLR)

Court of Appeal of Kenya
27 July 2005
ROR. S. C. OmoloPhilip Kiptoo TunoiP. K. TunoiEGE. M. Githinji
312 words in judgment
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The bottom line

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Kenya's Court of Appeal protected an appeal from being struck out because a registrar's certificate on filing time stands unless disproved with solid evidence.

What this practically means

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Executive summary

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This is a short interlocutory ruling of the Court of Appeal at Mombasa (Omolo, Tunoi and Githinji, JJ.A.) delivered on 27th July 2005 in Civil Appli NAI 39 of 2005. The appellant, Peter Kinyua Muchendu, moved to strike out the respondent Getrude Chao Waita's notice of appeal from a ruling of the High Court at Mombasa (Sergon, J) dated 27th June 2003 in H.C.C.C. No. 72 of 2003, presumably on the basis that the record of appeal was filed out of time. The court applied the proviso to rule 81(1) of the Court of Appeal Rules, under which any period certified by the registrar of the superior court as necessary for the preparation and delivery of proceedings is excluded in computing the time for filing the record. The Deputy Registrar had certified that he required the period from 1st July 2003 to 8th July 2005 to prepare and deliver the proceedings, which the respondent collected on 8th July 2005. Counsel for the applicant alleged without evidence that the certificate had been issued to defeat the motion. The court held that no acceptable evidence established that the certificate was false, declined to draw the serious inference urged on it, dismissed the motion with costs to the respondent, and thereby left the notice of appeal intact.

Key legal issues

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Effect of the Deputy Registrar's certificate under the proviso to rule 81(1)

Holding

The certified period (1st July 2003 to 8th July 2005) was properly excluded in computing the time for filing the record of appeal, so the record was filed in time and the motion to strike out failed

Reasoning

The court treated the registrar's certificate as conclusive of the time required to prepare and deliver proceedings unless impeached. The applicant alleged the certificate was issued to defeat the motion, but the court held that such a serious allegation required acceptable evidence, which was not produced. In the absence of proof to the contrary, the certificate stood and the time for filing the record was extended accordingly.

p. 2

Legal principles established

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  • Under the proviso to rule 81(1) of the Court of Appeal Rules, time certified by the registrar of the superior court as necessary for preparation and delivery of proceedings is excluded in computing the time for filing the record of appeal, and such a certificate stands unless disproved by acceptable evidence
  • An allegation that a registrar's certificate was fraudulently issued to defeat a motion must be supported by acceptable evidence before the court can act on it

Court orders

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  1. 1.The notice of motion to strike out the notice of appeal is dismissed
  2. 2.Costs of the motion awarded to the respondent

Authorities

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Legislation

  • Court of Appeal Rulesrule 81(1) (proviso)
On appeal from
High Court of Kenya at Mombasa
H.C.C.C. No. 72 of 2003
Jurisdiction invoked
Court of Appeal Rules, rule 81(1) (application to strike out notice of appeal under the Court's incidental jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Peter Kinyua Muchendu v Getrude Chao Waita [2005] KECA 171 (KLR)", Case Analysis (2005). Civil Appli NAI 39 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/171/eng@2005-07-27

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