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Court of AppealAllowedCivil Appeal (Appli.) No. 258 of 2007· [2008] KECA 176 (KLR)

Embakasi Youth Development Project v Housing Finance Company of Kenya Ltd [2008] KECA 176 (KLR)

Court of Appeal
11 July 2008
Philip Kiptoo TunoiP. K. TunoiEGE. M. GithinjiJOJ. W. Onyango Otieno
1,271 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out a late-filed appeal, confirming that requesting certified court documents doesn't automatically freeze appeal deadlines.

What this practically means

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Executive summary

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This was an application under Rules 80 and 81 of the Court of Appeal Rules by the respondent, Embakasi Youth Development Project, seeking to strike out the record of appeal filed by Housing Finance Company of Kenya Ltd in Civil Appeal No. 258 of 2007. The appeal was lodged on 7th December 2007 against a ruling of Ojwang J of the High Court delivered on 12th November 2004, dismissing the appellant's reference against the taxation of costs following the appellant's discontinuance of a trespass suit. The respondent contended the record was lodged out of time, that the advocate's letter bespeaking certified copies did not attract the benefit of the proviso to Rule 81(1), and that the certificate of delay was unreliable. The court, unanimously (Tunoi, Githinji and Onyango Otieno JJA), held that only the time needed to certify copies is excluded in computing time under the proviso to Rule 81(1); the application for certified copies did not ipso facto extend time where uncertified copies would have been supplied in the same period. Since uncertified copies were ready by 7th September 2007 and the appellant could have filed a competent appeal with uncertified copies, time ran from the day after notification, and the delays thereafter were unexplained. The court found the appeal was lodged out of time and without leave, allowed the application, and struck out the appeal with costs to the respondent.

Key legal issues

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01

Computation of time for lodging an appeal where certified copies of proceedings are requested

Holding

The appellant was only required to lodge the appeal using uncertified copies; since uncertified copies were ready for collection by 7th September 2007, time started running from the day after notification, and the resulting delays were unexplained.

Reasoning

The court held that the proviso to Rule 81(1) excludes only the time needed for certifying copies. The Deputy Registrar's letter of 7th September 2007 showed uncertified copies were ready. The appellant could have filed a competent appeal using uncertified copies, so the delay in paying for and collecting copies, and in lodging the appeal, fell outside the excluded period and was not explained.

p. 3
02

Competence of an appeal lodged out of time and without leave

Holding

The appeal having been lodged out of time and without leave of the court, the record of appeal was struck out on application under Rules 80 and 81 of the Court of Appeal Rules.

Reasoning

Having found that time ran from 8th September 2007 and that the periods from 8th September to 2nd November 2007 and from 3rd November to 6th December 2007 were unexplained, the court concluded the appeal filed on 7th December 2007 was out of time and without leave, and therefore incompetent, justifying striking out.

p. 3

Legal principles established

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  • It is only the time needed for certifying copies of the proceedings that is excluded under the proviso to Rule 81(1); once uncertified copies are ready and the party is notified, time begins to run.
  • An application for certified copies does not automatically attract the benefit of the proviso to Rule 81(1) if the supply of certified copies took no longer than uncertified copies would have taken.

Court orders

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  1. 1.The application to strike out the record of appeal was allowed with costs
  2. 2.Civil Appeal No. 258 of 2007 was struck out with costs to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 80
  • Court of Appeal RulesRule 81
  • Court of Appeal RulesRule 81(1)
  • Court of Appeal RulesRule 81(2)
  • Advocates Remunerations OrderRule 11
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 1086 of 2001
Jurisdiction invoked
Rules 80 and 81 of the Court of Appeal Rules (application to strike out record of appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Embakasi Youth Development Project v Housing Finance Company of Kenya Ltd [2008] KECA 176 (KLR)", Case Analysis (2008). Civil Appeal (Appli.) No. 258 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/176/eng@2008-07-11

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