Panalpina (E.A) Ltd v Joseph Njuguna Nga'e
The bottom line
#Kenya's Court of Appeal refused to strike out a late appeal because an official certificate of delay proved the court itself caused the 398-day delay.
What this practically means
#Executive summary
#Key legal issues
#Weight of the certificate of delay in computing delay under rule 81(1)
The unchallenged certificate of delay covering the whole period up to 7th August 2003 validated the late filing of the record of appeal, confirming the Deputy Registrar's earlier letters were issued in error.
The Deputy Registrar's certificate of delay, issued on 14th August 2003, gave the full history of efforts to prepare proceedings and stated the Court took 398 days to supply them. It was never challenged by the applicant, so its contents stand. It effectively confirmed that the letters of 25th October 2002 and 10th July 2003 stating proceedings were ready were written in error, since uncertified copies were never even given.
Whether certification of proceedings is necessary before compiling the record of appeal
Certification is not legally necessary for compiling the record of appeal, but the thrust of the respondent's letter was that even uncertified copies had not been handed over.
Counsel for the applicant correctly noted that certification is not required in law for compiling a record of appeal. However, the court read the respondent's letter of 3rd February 2003 as showing the real complaint was that the copies, certified or not, had only been typed as drafts, not proof-read, and had not been handed over, so the point did not assist the applicant.
Threshold for striking out an appeal
Striking out is a serious step requiring proper and weighty reasons; the court must be satisfied it is the only decision open to it.
The court reiterated that striking out an appeal is drastic and will not be done lightly. Given the unchallenged certificate of delay attributing the entire delay to the Court's own failure to supply proceedings, the applicant failed to show striking out was the only decision open, so the application failed.
Legal principles established
#- The certificate of delay is the official document under the proviso to rule 81(1) that guides the Court in computing and validating delay in filing a record of appeal, and it cannot be taken lightly.
- An unchallenged certificate of delay's contents stand and bind the Court's computation of delay.
- Striking out an appeal requires proper and weighty reasons; it is a remedy of last resort.
Court orders
#- 1.The Notice of Motion seeking to strike out the appeal is dismissed with costs to the respondent/appellant
- On appeal from
- High Court of Kenya at Nairobi (Central)
- H.C.C.A. No. 297 of 1999
- Jurisdiction invoked
- Rules 42 and 80 of the Court of Appeal Rules (application to strike out appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Panalpina (E.A) Ltd v Joseph Njuguna Nga'e", Case Analysis (2006). Civil Appeal 232 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/264/eng@2006-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.