MIWANI SUGAR MILLS LIMITED & another v NAGENDRA SAXENA & 2 others [2010] KECA 448 (KLR)
The bottom line
#The Court of Appeal saved an appeal from being struck out because the appellant asked for court proceedings in time, and the registry's own delay didn't count against it.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appeal filed on 4th December 2008 was filed out of time without leave of the Court
- 2.Whether the record of appeal was incomplete for lacking all the notes of the superior court
- 3.Whether the application to strike out the appeal should be considered under the old rules or the amended Appellate Jurisdiction Act
Key legal issues
#Whether the appeal was filed out of time without leave
The appeal was filed within time because the appellant applied for proceedings and judgment within the 30-day period, and the time taken by the Deputy Registrar to supply the copies is excluded under the proviso to Rule 81
The judgment of the superior court was delivered on 13th June 2008 and the appellant immediately wrote to the Deputy Registrar requesting copies of proceedings and judgment, with a follow-up letter on 25th June 2008, both within the 30-day period prescribed by the rule. Delay in obtaining the copies was attributable to the Deputy Registrar. The copies were collected on 8th October 2008 and the appeal lodged on 4th December 2008. The proviso to Rule 81 excludes the time certified as required for preparation and delivery of the copy, so the appeal was not out of time.
Whether the appeal was saved by the ruling of 16th January 2009 ordering it to be lodged within 45 days
The appeal had already been filed on 4th December 2008, before the ruling of 16th January 2009, so the application to strike out failed whichever way it was looked at
The Court noted that by the time the ruling of 16th January 2009 was delivered, ordering the appeal to be lodged within 45 days if not already filed, the appeal had in fact been lodged on 4th December 2008. Accordingly, even on that basis the application lacked merit.
Whether the application should be considered under the old rules or the amended Appellate Jurisdiction Act
Even under the old rules the application lacked merit; the Court drew attention to the new overriding objective provisions (sections 3A and 3B) which came into effect on 23rd July 2009
Counsel for the applicants urged the Court to consider the application under the old rules. The Court held that even under the old rules the application failed. It nonetheless drew attention to the amendments to the Appellate Jurisdiction Act effective 23rd July 2009, quoting the overriding objective in sections 3A and 3B, though it decided the matter on the old rules.
Legal principles established
#- 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 sixty-day period for instituting an appeal under Rule 81
- Rule 81 requires an appeal to be instituted within sixty days of the date when the notice of appeal was lodged, in mandatory terms, subject to the proviso excluding time for preparation of proceedings
Court orders
#- 1.The application for striking out the record of appeal is dismissed
- 2.Costs of the application shall be in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisumu
- H.C.C.C. No. 225 of 1993
- Jurisdiction invoked
- Rule 80 of the Court of Appeal Rules (application to strike out record of appeal); sections 3A and 3B of the Appellate Jurisdiction Act
Relief refused
#Striking out of the record of appeal and the appeal filed on 4th December 2008
The appeal was not filed out of time; time for preparation and delivery of proceedings was excluded under the proviso to Rule 81, and the appeal was already filed by the date of the stay ruling of 16th January 2009
Costs of the application payable by the appellant forthwith
The Court ordered that costs of the application be in the appeal rather than payable immediately
Costs
Costs of the application shall be in the appeal
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Rule 81 of this Court's Rules provides in mandatory terms that an appeal shall be instituted within sixty (60) days of the date when the notice of appeal was lodged.
we are satisfied that the appeal which is sought to be struck out was not filed out of time.
For the foregoing reasons we are satisfied that the application for striking out fails and we order that the same be dismissed. As regards the costs of the application we are of the view that these shall be in the appeal. It is so ordered.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "MIWANI SUGAR MILLS LIMITED & another v NAGENDRA SAXENA & 2 others [2010] KECA 448 (KLR)", Case Analysis (2010). Civil Appeal (Application) 261 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/448/eng@2010-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.