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Court of AppealDismissedCivil Appli. Nai 202 of 2006· [2007] KECA 3 (KLR)

John Nginyi Muchiri v Saul Korir Kiptalam & 6 others

Court of Appeal of Kenya
30 March 2007
SBS.E.O. BosireEOE.O. O'KubasuWDW.S. Deverell
979 words in judgment
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The bottom line

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The Court of Appeal refused to strike out a notice of appeal because delays in preparing court proceedings don't count against the appellant.

What this practically means

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Executive summary

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This was an interlocutory application by notice of motion under Rules 42, 43, 74, 80 and 81 of the Court of Appeal Rules in which John Nginyi Muchiri, the successful litigant before the High Court at Nakuru (Musinga, J.) in H.C.C.C. No. 583 of 1996, sought to strike out the Notices of Appeal filed on 28th April, 2005 and 12th May, 2005 by the 2nd, 4th, 5th and 7th respondents. The applicant argued that the respondents had failed to take essential steps to institute their appeals, that the time allowed by the rules had expired, and that the notice filed by the 4th and 7th respondents was incurably defective; counsel suggested the notices were filed merely to keep the applicant away from the fruits of his judgment. The respondents explained that the typed proceedings were not ready, the court file moving between offices, and that they were not at fault. The Court of Appeal (Bosire, O'Kubasu and Deverell, JJA) noted that the respondents' advocates had written to the Deputy Registrar the day after the 28th April, 2005 judgment requesting certified copies of the proceedings and judgment, with a further letter on 31st January, 2007, and that there was no letter from the Deputy Registrar confirming the copies were ready for collection. Relying on the proviso to rule 81(1), which excludes from the computation of time the period certified by the registrar as required to prepare and deliver a copy of the proceedings where application is made within thirty days, the court held that the respondents had not gone to sleep. The application was dismissed with costs to the respondents. The decision below was not disturbed; the ruling concerns only the fate of the notice of appeal.

Key legal issues

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Whether a notice of appeal should be struck out where the appellant has not lodged the record of appeal within the prescribed time

Holding

The application failed because the respondents had applied for certified copies of the proceedings and judgment within thirty days of the decision, engaging the proviso to rule 81(1) which excludes from the computation of time the period required by the registrar to prepare and deliver the copies. Since no letter from the Deputy Registrar showing the copies were ready was produced, the respondents could not be said to have gone to sleep or failed to take essential steps.

Reasoning

The court noted that the advocates for the 2nd and 5th respondents wrote to the Deputy Registrar on 29th April, 2005, the day after judgment, requesting certified copies of the proceedings and judgment to prepare the record of appeal, and copied the letter to the applicant's advocates. A similar letter was written on 31st January, 2007. There was no letter from the Deputy Registrar stating the certified copies were ready for collection. The proviso to rule 81(1) therefore protected the respondents' position, and the delay was attributable to the registry, whose file 'kept on moving from one office to another', not to the appellants.

p. 3

Legal principles established

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  • Where an appellant applies for a copy of the superior court proceedings in accordance with sub-rule (2) of rule 81 within thirty days of the decision appealed against, the time certified by the registrar as required for preparation and delivery of the copy is excluded in computing the time within which the appeal must be instituted; failure by the court registry to ready the proceedings is not a failure by the appellant to take essential steps.

Court orders

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  1. 1.The notice of motion dated 29th June, 2006 be and is hereby dismissed
  2. 2.Costs of the application to the respondents
On appeal from
High Court of Kenya at Nakuru
H.C.C.C. No. 583 of 1996
Jurisdiction invoked
Rules 42, 43, 74, 80 and 81 of the Court of Appeal Rules (application to strike out a Notice of Appeal)

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, "John Nginyi Muchiri v Saul Korir Kiptalam & 6 others", Case Analysis (2007). Civil Appli. Nai 202 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/3/eng@2007-03-30

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