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Court of AppealDismissedCivil Appli 26 of 2009

RODGERS ABISAI T/A ABISAI & COMPANY ADVOCATES v WACHIRA WARURU & another [2009] KECA 199 (KLR)

Court of Appeal of Kenya
17 July 2009
Philip Kiptoo TunoiP.K. TunoiPWP.N. WakiJOJ.W. Onyango Otieno
754 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that you can't have an appeal struck out just because the court registry hasn't supplied the documents needed to file it.

What this practically means

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Executive summary

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The applicant, Rodgers Abisai, applied to the Court of Appeal at Kisumu under the Court of Appeal Rules to have the respondents' notice of appeal, dated 23rd May 2007 and lodged on 25th May 2007, deemed withdrawn on the ground that they had failed to take essential steps to lodge the record of appeal within the time stipulated by the Rules. The appeal was from a judgment of Bauni, J. in Kisii HCCC No. 52 of 2001 dated 18th May 2007, assessing damages following the Court of Appeal's earlier direction that the matter be remitted to the High Court for assessment. The respondents had on 30th May 2007 requested the Deputy Registrar for typed certified copies of the proceedings and judgment, which had not been received. Counsel for the applicant argued that the request for certified rather than uncertified copies breached the mandatory proviso to rule 81(1). The Court disagreed, holding that certified copies of proceedings and judgment are not necessary documents for an appeal and that rule 81(1) is not breached merely by asking for certified copies; a breach would arise only where uncertified copies are available but the intending appellant insists on certified ones. Since the Deputy Registrar had never replied and the availability of the documents was unknown, the Court found it would be unjust to condemn the respondents and concluded the application was premature. The full bench of Tunoi, Waki and Onyango Otieno, JA unanimously dismissed the application with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondents failed to take essential steps to lodge the record of appeal within the time stipulated by the Court of Appeal Rules
  2. 2.Whether requesting certified copies of proceedings and judgment breaches rule 81(1) of the Court of Appeal Rules
  3. 3.Whether the application to deem the notice of appeal as withdrawn was competent or premature

Key legal issues

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01

Whether requesting certified copies of proceedings and judgment constitutes failure to take an essential step under rule 81(1)

Holding

No. Rule 81(1) is only breached where uncertified copies are available and the intending appellant refuses to use them, insisting on certified copies.

Reasoning

The court held that certified copies are unnecessary for mounting an appeal since uncertified copies can be obtained more quickly. Where the Deputy Registrar has not replied to a request and it is unknown whether any copies, certified or uncertified, are available, an intending appellant cannot be faulted for failing to compile the record. The obligation to supply the documents rests on the Deputy Registrar.

p. 2
02

Whether an application to deem a notice of appeal withdrawn was premature on the facts

Holding

Yes. The application ought not to have been lodged where it was not established that the respondents' omission, if any, breached rule 81.

Reasoning

The court noted the absence of any reply from the Deputy Registrar on the availability of documents and observed that counsel for the applicant himself did not know whether the documents were available. Given that uncertainty, condemning the respondents would be unjust, and the applicant's motive could be gleaned from the subject matter of the dispute. The application was therefore dismissed.

p. 2

Legal principles established

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  • Certified copies of proceedings and judgment are not necessary documents for compiling a record of appeal; an intending appellant requires only uncertified copies.
  • Rule 81(1) of the Court of Appeal Rules is not breached by merely requesting certified copies of proceedings; a breach may occur only where uncertified copies are available but the intending appellant insists on certified ones.

Court orders

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  1. 1.The application to deem the notice of appeal dated 23rd May 2007 as withdrawn is dismissed
  2. 2.Costs of the application awarded to the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Philip Kiptoo Tunoi
majority
PW
majority
JO
majority
On appeal from
High Court of Kenya at Kisii
H.C.C.C. No. 52 of 2001
Jurisdiction invoked
Application under the Court of Appeal Rules to deem a notice of appeal as withdrawn

Relief refused

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Deeming the notice of appeal dated 23rd May, 2007 as withdrawn

The respondents' request to the Deputy Registrar for certified copies went unanswered, and it would be unjust to condemn them for failing to lodge the record; the application was premature

p. 2

Costs

Application dismissed with costs to the respondents

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the result, we dismiss the application with costs.
p. 2Final orders - dismissal of the application
We would agree with Mr. Oguttu, learned counsel for the applicant, that certified copies of proceedings and judgment are not necessary documents for the purposes of an appeal.
p. 2Documents necessary for compiling a record of appeal
The said rule is not breached by merely asking for certified copies of proceedings.
p. 2Compliance with rule 81(1) of the Court of Appeal Rules
it would be the height of injustice to condemn the respondents, who have been ably represented by Mr. Echessa, for failing to take an essential step to lodge the requisite record of appeal.
p. 2Justice of condemning an intending appellant where the registry has not responded

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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, "RODGERS ABISAI T/A ABISAI & COMPANY ADVOCATES v WACHIRA WARURU & another [2009] KECA 199 (KLR)", Case Analysis (2009). Civil Appli 26 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/199/eng@2009-07-17

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