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Court of AppealDismissedCivil Appli 230 of 2006· [2007] KECA 367 (KLR)

Zacharia Mogeni v Standard Chartered Bank (K) LTD [2007] KECA 367 (KLR)

Court of Appeal of Kenya
30 March 2007
Philip Kiptoo TunoiP. K. TunoiEOE. O. O'KubasuJOJ. W. Onyango Otieno
938 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that time a court spends preparing case records doesn't count against a party's deadline to file an appeal.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal at Eldoret (Tunoi, O'Kubasu and Onyango Otieno, JJA) on a notice of motion by Zacharia Mogeni seeking to strike out a notice of appeal dated 12th August 2004 lodged by Standard Chartered Bank (K) Ltd against a High Court ruling of Dulu, J in Civil Case No. 42 of 1997. The applicant contended that an essential step had not been taken because no appeal had been lodged within the prescribed time after the notice of appeal. Counsel for the respondent produced a certificate of delay issued by the Deputy Registrar under Rule 81 of the Court of Appeal Rules showing that an application for copies of the proceedings and judgment was lodged on 12th August 2004, within thirty days of the ruling, and that certified copies were only supplied and collected on 28th July 2006 after payment of court fees. The appeal was lodged on 1st September 2006, and counsel for the applicant conceded it had indeed been filed. The court held that under the proviso to rule 81(1), the time certified by the registrar as required for preparation and delivery of copies of proceedings is excluded in computing the time for instituting an appeal. The appeal was therefore filed within time. The motion dated 14th August 2006 was dismissed with costs to the respondent. No external authorities were cited.

Key legal issues

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01

Whether an appeal filed more than thirty days after the decision is out of time where a certificate of delay shows the superior court took until 28th July 2006 to supply copies of proceedings

Holding

The appeal was filed within time because the period taken by the superior court to prepare and supply copies of proceedings is excluded under the proviso to rule 81(1) of the Court of Appeal Rules

Reasoning

The applicant applied for typed copies of the proceedings on the same day the notice of appeal was filed, within thirty days of the ruling. A certificate of delay issued under Rule 81 showed the court fees were only paid on 28th July 2006, when the copies were collected, and the appeal was lodged on 1st September 2006. Applying the proviso to rule 81(1), the excluded period covers the delay, so the appeal was not filed out of time and the application to strike out the notice of appeal lacked merit.

p. 2

Legal principles established

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  • Where an application for a copy of the proceedings in the superior court is made 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

Court orders

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  1. 1.The notice of motion dated 14th August 2006 is dismissed
  2. 2.Costs of the application to the respondent
On appeal from
High Court of Kenya at Eldoret
H.C.C.C. No. 42 of 1997
Jurisdiction invoked
Rules 80 and 81 of the Court of Appeal Rules (inherent appellate supervisory jurisdiction over notices 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, "Zacharia Mogeni v Standard Chartered Bank (K) LTD [2007] KECA 367 (KLR)", Case Analysis (2007). Civil Appli 230 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/367/eng@2007-03-30

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