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Court of AppealDismissedCivil Application No. 202 of 2006

John Nginyi Muchiri v Saul Korir Kiptalam & 6 others [2007] KECA 361 (KLR)

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

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Kenya's Court of Appeal refused to strike out notices of appeal because delay caused by the court registry preparing copies does not count against an appellant.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nakuru (Bosire, O'Kubasu and Deverell, JJA) on a notice of motion by John Nginyi Muchiri seeking to strike out notices of appeal filed on 28th April, 2005 and 12th May, 2005 by the 2nd, 4th, 5th and 7th respondents against a judgment of the High Court at Nakuru (Musinga, J.) in H.C.C.C. No. 583 of 1996 delivered on 28th April, 2005. The applicant, who had obtained judgment in the superior court and claimed to be kept from its fruits, argued that the respondents had failed to take essential steps to institute their appeals, that the time for lodging the appeal had expired, and that the notice of appeal of the 4th and 7th respondents was incurably defective. The respondents countered that the typed proceedings were not ready, the file having moved from office to office, so they were not at fault. The court found that the respondents' advocates had applied for certified copies of the proceedings and judgment by letter dated 29th April, 2005, one day after judgment, copied to the applicant's advocates, with a similar letter on 31st January, 2007, and that no letter from the Deputy Registrar confirmed the copies were ready. Invoking the proviso to rule 81(1) of the Court of Appeal Rules, which excludes time certified by the registrar as required for preparing copies, the court held the respondents had not gone to sleep and dismissed the motion with costs to the respondents.

Key legal issues

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01

Whether filing a notice of appeal and then taking no visible follow-up amounts to failure to take essential steps warranting striking out

Holding

No, where the appellant has within thirty days applied for certified copies of proceedings and judgment, the proviso to rule 81(1) excludes the time taken by the registrar, so the notice of appeal should not be struck out for delay attributable to the court's own preparation of the record.

Reasoning

The 2nd and 5th respondents' advocates wrote to the Deputy Registrar on 29th April, 2005, one day after judgment, requesting certified copies of the proceedings and judgment and offering to deposit the required payment; a similar letter was written on 31st January, 2007. No letter from the Deputy Registrar confirmed the copies were ready. The delay was therefore not the respondents' fault, and the applicant's motion was brought without merit.

p. 3

Legal principles established

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  • Where an applicant for a copy of the superior court proceedings makes the application in accordance with sub-rule (2) of rule 81 within thirty days of the decision, the time certified by the registrar as required for preparation and delivery of the copy is excluded when computing the time within which the appeal must be instituted.

Court orders

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  1. 1.The notice of motion dated 29th June, 2006 seeking to strike out the notices of appeal be and is hereby dismissed
  2. 2.Costs of the application awarded 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 (interlocutory application jurisdiction of the Court 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 [2007] KECA 361 (KLR)", Case Analysis (2007). Civil Application No. 202 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/361/eng@2007-03-30

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