C.Y.O. O v R.O.O [2011] KECA 48 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed an attempt to strike out an appeal, confirming a copy of the bespeaking letter need only be sent, not personally served, under the old rules.
What this practically means
#Executive summary
#Key legal issues
#Service of the notice of appeal
On a balance of probability the court found the notice of appeal was served on the applicant, R, despite conflicting affidavit evidence
The court weighed sworn affidavits of the respondent's side against those of the appellant's advocate and process server. It preferred the respondent's account because the affidavits in reply were filed and served in time for the applicant to refute the facts stated, and no refutation was offered, only a belated, rejected attempt to adjourn.
Whether the bespeaking letter required personal service
The then-applicable rule 8(2) required only that a copy of the written application for copies be sent to the respondent; 'service' was introduced only by the 2010 Rules
The court examined rule 8(2) as it existed in October 2008 and found no requirement of personal service; the letter written within thirty days of the decision and copied to the applicant satisfied the rule. The amendment requiring service appears in rule 82(2) of the Court of Appeal Rules 2010, and in any event there was affidavit evidence of personal service which the court believed.
Application of the proviso to rule 81
The proviso to rule 81 was complied with and the certificate of delay entitled the respondent to file the memorandum and record of appeal when it did; the appeal was filed timeously and was valid
Having found that the bespeaking letter was duly sent (and indeed served) within the prescribed time, the court held the proviso to rule 81 was engaged. The certificate of delay issued by the Deputy Registrar on 22nd June 2009 covered the delay caused by the registry, and the record filed on 9th July 2009 was therefore within time under rule 81.
Time limit in the proviso to rule 80
On its face the striking-out motion was filed out of time under the proviso to rule 80, but the court entertained it because it was argued inter partes
The proviso to rule 80 bars a striking-out application brought more than thirty days after service of the notice of appeal or record of appeal. The court noted the motion was facially out of time and liable to be struck out, but since the parties argued it on its merits, the court considered it on that basis rather than striking it out for lateness.
Legal principles established
#- Under rule 8(2) as it existed in October 2008, an appellant need only send a copy of the written application for proceedings to the respondent; personal service was not required until the 2010 amendment
- Where the Deputy Registrar's certificate of delay applies and the proviso to rule 81 is complied with, the memorandum and record of appeal filed thereafter are filed timeously
Court orders
#- 1.The notice of motion dated 10th August 2009 seeking to strike out the notice of appeal, memorandum of appeal and entire record of appeal is dismissed
- 2.Costs of the application awarded to the respondent
- On appeal from
- High Court of Kenya at Nairobi
- Nairobi H.C.C.A. No. 33 of 2001
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal under the Court of Appeal Rules (rule 80 application in a pending appeal); no specific constitutional provision invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "C.Y.O. O v R.O.O [2011] KECA 48 (KLR)", Case Analysis (2011). Civil Appeal No. 148 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/48/eng@2011-11-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.