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Court of AppealAllowedCivil Appli NAI 103 of 2005· [2005] KECA 172 (KLR)

Zachariah Muhia Ng’ang’a v Abdul Hussein Omar & 3 others [2005] KECA 172 (KLR)

Court of Appeal
29 July 2005
372 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out a Notice of Appeal because the appellants delayed filing the actual appeal and never sought an extension of time or a Certificate of Delay.

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 Mombasa delivered on 29 July 2005 by Tunoi, Githinji and Deverell, JJ.A., in Civil Appli NAI 103 of 2005, in which Zachariah Muhia Ng'ang'a, the applicant, sought to strike out a Notice of Appeal dated 24 March 2003 and lodged on 25 March 2003, directed against the judgment and order of the High Court at Mombasa (Omwitza and Sergon, JJ) dated 19 March 2003 in H.C.C.C. No. 591 of 1995. The application was expressed to be brought under rules 80 and 82 of the Rules of the Court. The court recorded that it was manifestly clear, and not disputed, that no appeal had been instituted against that judgment. The respondents' only explanation was that copies of the proceedings and judgment had not been received, and they exhibited a letter bespeaking those copies dated 24 March 2003; what they did thereafter was not clear. Critically, they had neither sought an extension of time to lodge an intended appeal nor obtained a Certificate of Delay from the Registrar, and the court held that in these circumstances they could not resist the application. Relying on rule 82, the court further held that the Notice of Appeal stood deemed to have been withdrawn for failure to institute the appeal within the appointed time. The application was accordingly allowed, the Notice of Appeal was ordered struck out, and the applicant was awarded the costs of the application. The practical effect is that the intended appeal cannot proceed and the High Court judgment remains undisturbed.

Key legal issues

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01

Whether a notice of appeal must be struck out where the intending appellant has failed to institute the appeal within the prescribed time.

Holding

Yes. It was undisputed that no appeal had been instituted against the High Court judgment of 19th March 2003. The only excuse offered was non-supply of copies of the proceedings and judgment, supported by a letter bespeaking dated 24th March 2003, but what the respondents did thereafter was not shown. Since no extension of time had been sought and no Certificate of Delay had been obtained, the respondents could not resist the application, and under rule 82 the notice of appeal was deemed to have been withdrawn for failure to institute the appeal within the appointed time.

Reasoning

The court grounded the striking out on the combined effect of the deemed-withdrawal provision and the respondents' failure to regularise their position. A letter bespeaking copies does not, of itself, arrest the operation of rule 82; the intending appellant must either obtain an extension of time within which to lodge the appeal or procure a Certificate of Delay from the Registrar to explain the non-supply of the record. Having done neither, the respondents had no answer to the strike-out application, which was accordingly allowed with costs to the applicant.

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02

Whether the claim that copies of proceedings and judgment had not been received excuses the failure to institute an appeal in time.

Holding

No. The excuse does not avail an intending appellant who has neither applied for an extension of time to lodge the intended appeal nor obtained a Certificate of Delay from the Registrar; such a party cannot resist an application to strike out the notice of appeal.

Reasoning

The court acknowledged the letter bespeaking the copies exhibited by the respondents but observed that what they did thereafter was not clear. The decisive factors were the absence of any extension-of-time application and the absence of a Certificate of Delay from the Registrar. Without one of these steps, the lapse of the appointed time for instituting the appeal left the notice of appeal deemed withdrawn and exposed to striking out under rules 80 and 82.

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Legal principles established

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  • A notice of appeal is deemed to have been withdrawn under rule 82 where the intending appellant fails to institute the appeal within the appointed time.
  • An intending appellant who has neither sought an extension of time nor obtained a Certificate of Delay from the Registrar cannot resist an application to strike out a notice of appeal where no appeal has been instituted within the prescribed time.

Court orders

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  1. 1.The Notice of Appeal dated 24th March, 2003 and lodged in Court on 25th March, 2003 is struck out.
  2. 2.The applicant shall have the costs of the application.

Authorities

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Legislation

  • Rules of the Court (Court of Appeal Rules)Rule 80
  • Rules of the Court (Court of Appeal Rules)Rule 82
On appeal from
High Court of Kenya at Mombasa
H.C.C.C. No. 591 of 1995
Jurisdiction invoked
Rules 80 and 82 of the Rules of the Court (Court of Appeal Rules)

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, "Zachariah Muhia Ng’ang’a v Abdul Hussein Omar & 3 others [2005] KECA 172 (KLR)", Case Analysis (2005). Civil Appli NAI 103 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/172/eng@2005-07-29

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