DALY & COMPANY LIMITED v MOBIL OIL KENYA LIMITED [2009] KECA 388 (KLR)
The bottom line
#Kenya's Court of Appeal refused to kill an appeal where delays were caused by the court registry, not the appellant.
What this practically means
#Executive summary
#Key legal issues
#Whether a notice of appeal may be struck out where the appellant has not filed the record of appeal within the prescribed sixty days
The notice of appeal was not struck out because the proviso to rule 81 applied: the respondent applied for typed proceedings within thirty days of the decision, paid the typing deposit, and even typed the proceedings itself, yet the Deputy Registrar never certified them
The court accepted that an appeal must be instituted within sixty days under rule 81, but the proviso excludes the time certified as required for preparation and delivery of the proceedings copy. The respondent's advocates wrote repeatedly from 25th October 2006, paid the deposit, and forwarded typed hard and soft copies for certification, yet the Deputy Registrar never responded. The delay was therefore not attributable to the respondent, which had done all it could, so striking out the notice was unwarranted.
Whether the respondent had been indolent in pursuing its intended appeal
The respondent was not indolent; it made repeated, documented efforts to obtain the proceedings and judgment needed to prepare the record of appeal
The applicant argued the respondent had done nothing since filing the notice of appeal and had not obtained a certificate of delay. The court reviewed the respondent's correspondence trail: letters of 25th October 2006 and 27th April 2007 requesting proceedings, payment of the Kshs.2,000 typing fee, a letter of 26th October 2007 enclosing typed proceedings for certification, and reminders of 28th November 2008. Given these efforts and the registry's non-response, the court found no indolence and dismissed the application.
Legal principles established
#- Rule 81 of the Court of Appeal Rules requires an appeal to be instituted within sixty days of the lodging of the notice of appeal, but the proviso excludes, from that computation, time certified by the registrar as required for the preparation and delivery of a copy of the proceedings where an application for the copy was made within thirty days of the decision
- A notice of appeal will not be struck out where the appellant has diligently pursued the steps necessary to prepare and lodge the record of appeal and the delay is attributable to the court's registry rather than the appellant's indolence
Court orders
#- 1.The notice of motion dated 19th February, 2008 is dismissed with no orders as to costs
- 2.No orders as to the costs of the motion
- On appeal from
- High Court of Kenya at Mombasa
- H.C.C.C. No. 448 of 2001
- Jurisdiction invoked
- Court of Appeal Rules, Rules 80, 81(1) & (2) and 82(a) (interlocutory application before the Court of Appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "DALY & COMPANY LIMITED v MOBIL OIL KENYA LIMITED [2009] KECA 388 (KLR)", Case Analysis (2009). Civil Appli 45 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/388/eng@2009-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.