Ratemo Oira t/a Ratemo Oira & Company Advocates v Blue Shield Insurance Co. Ltd
The bottom line
#Kenya's Court of Appeal refused to strike out Blue Shield's appeals, confirming that certificates of delay are trusted unless clearly disproven.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether leave is required to appeal from a decision on an originating summons
- 2.Whether the appeals were filed out of time given the certificates of delay
- 3.Whether the certificates of delay could be relied upon despite alleged inaccuracies
- 4.Whether absence of an acknowledged bespeaking letter or its inclusion in the record vitiates the appeals
- 5.Whether the applications to strike out the records of appeal should be allowed
Key legal issues
#Right of appeal from originating summons decisions
No leave is required; such decisions are decrees covered by section 66 of the Civil Procedure Act
The court held that whether termed a judgment or a ruling, a decision on an originating summons finally determines all issues and is in essence a decree, so section 66 of the Civil Procedure Act applies and appeals lie as of right.
Timeliness and the certificate of delay
The appeals were filed within time; the certificates of delay were accepted absent cogent evidence challenging them
Mere assertion that typing should have taken eleven days does not displace the certificate of delay; the applicant produced no evidence of the registry's workload or of fraud. Errors in the certificate were registry mistakes not attributable to the appellant.
Bespeaking letter - acknowledgement and inclusion in record
No rule requires acknowledgement of a bespeaking letter nor its inclusion in the record of appeal
The certificate of delay itself acknowledged receipt of the letter, and the applicant's affidavit admitted its existence. The court followed its earlier decision that the certificate of delay sets out the fact of bespeaking, so absence of the letter in the record is immaterial.
New allegations raised from the bar
Serious allegations not raised in the grounds or supporting affidavit cannot be relied upon
The allegation that the bespeaking letter was not served was raised only from the bar despite being sufficiently serious to end the appeal; it should have been pleaded in the grounds and affidavit to give the other side an opportunity to respond.
Legal principles established
#- A decision on an originating summons is in essence a decree and appeals from it lie as of right under section 66 of the Civil Procedure Act without leave
- This Court relies on the certificate of delay for computation of time unless salient and cogent reasons are shown to challenge it
- There is no requirement to include a copy of the bespeaking letter in the record of appeal; the certificate of delay suffices
- A registry error in a certificate of delay should not attract drastic striking-out action against an appellant
Court orders
#- 1.The application to strike out Civil Appeal No. 177 of 2009 is dismissed with costs to the appellant/respondent, Blue Shield Insurance Company Limited
- 2.The application to strike out Civil Appeal No. 178 of 2009 is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Milimani Commercial Courts, Nairobi
- H.C.C.C. No. 243 of 2008 (O.S)
- Jurisdiction invoked
- Appellate jurisdiction under the Appellate Jurisdiction Act over applications to strike out records of appeal from the High Court
- Consolidated with
- Civil Appeal (Application) No. 178 of 2009
Relief refused
#Striking out Civil Appeal No. 177 of 2009
No case warranting striking out was made out; appeal was filed within time per the certificate of delay
Striking out Civil Appeal No. 178 of 2009
Grounds advanced did not justify striking out; certificate of delay showed no delay
Costs
Both applications dismissed with costs to the respondent (Blue Shield Insurance Company Limited) in each case.
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.
The upshot of the above, is that we are far from being satisfied that a case warranting striking out of Civil Appeal No. 177 of 2009 has been made out. The application in respect of that appeal is dismissed with costs to the appellant/respondent, Blue Shield Insurance Company Limited.
The application seeking striking out of Civil Appeal No. 178 of 2009 is also dismissed with costs to the respondent.
When it comes to computation of time within which the appeal should have been filed, this Court has always relied on the certificate of delay, unless salient and cogent reasons are set out to challenge the certificate of delay.
such decisions finally determine all the issues and are in essence decrees
There is no requirement for the inclusion of a copy of the letter bespeaking copies of proceedings and ruling in the record of appeal. The certificate of delay sets out that fact.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ratemo Oira t/a Ratemo Oira & Company Advocates v Blue Shield Insurance Co. Ltd", Case Analysis (2010). Civil Appeal (Application) No. 177 & 178 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/483/eng@2010-06-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.