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Court of AppealDismissedCivil Appeal 3 of 2003· [2006] KECA 99 (KLR)

Sultan Hasham Lalji & 2 others v Ahmed Hasham Lalji & 4 others [2006] KECA 99 (KLR)

Court of Appeal of Kenya
13 October 2006
SBS. E. O. BosireEGE. M. GithinjiJOJ. W. Onyango Otieno
2,271 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to strike out the Lalji appeal, confirming that registrar certificates of delay control appeal timelines.

What this practically means

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Executive summary

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The Court of Appeal at Nairobi (Bosire, Githinji and Onyango Otieno, JJA) ruled on an application by the 1st and 2nd respondents to strike out Civil Appeal No. 3 of 2003, an appeal against a High Court ruling of O'Kubasu J dated 21st July 2000 striking out the appellants' suit in H.C.C.C. No. 189 of 1998. The application advanced three grounds: late filing under Rule 81(1) and (2) of the Court of Appeal Rules; non-joinder of Atta (1974) Limited; and lodgment of the appeal by advocates not properly on record. On timeliness, the court held that the Deputy Registrar's certificate of delay, certifying the period required to prepare and deliver certified copies of proceedings and the ruling, took precedence over other documents unless shown to be inaccurate, and contemporaneous correspondence showed the copies were not in fact availed despite payment. The court reaffirmed the ratio in L. Z. Engineering and Joreth Limited on the effect of bespeaking certified copies on the 60-day period. On joinder, the court held that Atta (1974) Limited, a co-plaintiff whose claim survived the ruling below, could not be compelled into the appeal; having been served with the Notice of Appeal it was technically a respondent under Rule 2. On representation, the court found substantial compliance with Rule 23(1), the notice of change of advocates being incorporated in and served with the record of appeal. The application was dismissed with costs to the respondents. The decision binds subordinate courts and the High Court on the primacy of certificates of delay and the substantial-compliance approach to Rule 23(1).

Key legal issues

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01

Whether time should be excluded from the 60-day period for instituting the appeal under the proviso to Rule 81(1)

Holding

The Deputy Registrar's certificate of delay certifying the period from 3rd August 2002 to 21st November 2002 as required for preparation of copies of proceedings and ruling governed the computation of time, and the appeal filed on 23rd January 2003 was within time.

Reasoning

The appellants' advocates bespooked certified copies within 30 days and copied the applicants' advocates as required. Although the Deputy Registrar's letter of 20th August 2002 suggested the copies were ready, contemporaneous letters from the appellants' advocates showed the copies were not actually availed until collection on 21st November 2002. The handwritten endorsement was unreliable, and the certificate of delay, issued by the officer authorized by the Rules, takes precedence unless shown to be inaccurate or misleading.

p. 3
02

Whether failure to join Atta (1974) Limited as a party to the appeal rendered the appeal incompetent

Holding

Non-joinder of Atta (1974) Limited did not render the appeal incompetent; the company was technically a respondent by virtue of service of the Notice of Appeal and had no obligation to be joined as appellant or served with the record.

Reasoning

Atta (1974) Limited was a co-plaintiff whose claim was not struck out and remained subsisting, so it could not be an appellant. It could not be named a respondent either because the ruling appealed from was not made in its favour. The appellants were only required to serve the Notice of Appeal on it, which they did, and by the Rule 2 definition any person served with a notice of appeal is a respondent. The company never filed and served an address for service.

p. 4
03

Whether the appeal filed by advocates not properly on record was incompetent for want of a notice of change of advocates under Rule 23(1)

Holding

There was substantial compliance with Rule 23(1); the notice of change of advocates dated 20th January 2003 was incorporated in and served with the record of appeal, and it could be inferred it was contemporaneously filed with the appeal.

Reasoning

Because the definition of 'appeal' in Rule 2 includes an intended appeal, a notice of change of advocates was required when the appellants changed from M/s. Kembi Gitura & Company to M/s. Kipkenda, Lilan & Company. There was no evidence the original notice was not filed or was filed after the appeal. Its incorporation in the record without an appeal number indicated it was prepared before lodgment, and its inclusion in the served record satisfied the purpose of the rule.

p. 4

Legal principles established

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  • A certificate of delay issued by the Deputy Registrar under the proviso to Rule 81(1) takes precedence over any other document unless shown to be inaccurate or misleading.
  • Where an appellant bespeaks certified copies of proceedings, the time certified by the registrar for preparation and delivery of the copies is excluded in computing the 60-day period for instituting the appeal.
  • Under Rule 2, a person on whom a notice of appeal has been served is a respondent in a civil appeal, and there is no duty on appellants to join a co-plaintiff whose claim was not struck out as a party to the appeal.
  • A notice of change of advocates incorporated in and served as part of the record of appeal amounts to substantial compliance with Rule 23(1).

Court orders

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  1. 1.The applicants' application to strike out Civil Appeal No. 3 of 2003 is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Court of Appeal RulesRule 81(1) and (2)
  • Court of Appeal RulesRule 81(1) proviso
  • Court of Appeal RulesRule 78(1)
  • Court of Appeal RulesRule 76(1)
  • Court of Appeal RulesRule 2 (definition of 'respondent' and 'appeal')
  • Court of Appeal RulesRule 23(1)
  • Court of Appeal RulesRule 85(1)(b)

Cases cited (2)

  • ATTA (KENYA) LIMITED VS. SULTAN HASHAM LALJI & 7 OTHERS, Civil Application No. Nai. 157 of 2001
  • Joreth Limited
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 189 of 1998
Jurisdiction invoked
Court of Appeal Rules, Rule 81(1) and (2) (application to strike out appeal); appellate jurisdiction over the High Court ruling

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, "Sultan Hasham Lalji & 2 others v Ahmed Hasham Lalji & 4 others [2006] KECA 99 (KLR)", Case Analysis (2006). Civil Appeal 3 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/99/eng@2006-10-13

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