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Court of AppealDismissedCivil Appeal (Application) No. 288 of 2010· [2011] KECA 326 (KLR)

Kipsirgoi Investments Ltd v Kenya Anti-Corruption Commission [2011] KECA 326 (KLR)

Court of Appeal of Kenya
25 March 2011
PWP. N. WakiJOJ. W. Onyango OtienoAVAlnashir Visram
487 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to strike out Kipsirgoi Investments' appeal, holding its record was filed in time because the request for court proceedings was properly sent.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Eldoret (Waki, Onyango Otieno and Visram, JJA) on a notice of motion under Rules 80 and 42 of the Court of Appeal Rules in which the Kenya Anti-Corruption Commission, respondent in the appeal, sought to strike out the record of appeal filed by Kipsirgoi Investments Ltd on 22nd October, 2010 as out of time and without leave. The notice of appeal had been filed timeously on 13th July, 2010 against a ruling of Mwilu, J delivered on 7th July, 2010 in H.C.C.C. No. 61 of 2008. The applicant contended that the record should have been filed by 13th September, 2010, being 60 days after the notice of appeal, because it was never served with the letter requesting a copy of the proceedings as the Rules required. The respondent produced a certificate of delay showing the proceedings were ready for collection only on 28th September, 2010, and swore that the request letter was attached to the notice of appeal which the applicant admitted receiving on 16th July, 2010. The court verified the depositions, found the letter dated 16th September, 2010 requesting proceedings had indeed reached the applicant, and noted that rule 81(2) as it then stood required only that the copy be 'sent', not 'served' as under the amended rules effective December 2010. The application dated 5th November, 2010 was dismissed with costs to the respondent, allowing the appeal to proceed to hearing.

Key legal issues

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01

Whether the record of appeal was filed out of time

Holding

The record was within time because the proceedings were only ready for collection on 28th September, 2010, and the request for proceedings had been duly served.

Reasoning

The court verified the depositions and found the applicant was served with the letter dated 16th September, 2010 requesting copies of the proceedings, which was attached to the notice of appeal that the applicant admitted receiving on 16th July, 2010. Under rule 81(2) as it then stood, the copy of the request merely needed to be 'sent' to the respondent, not formally 'served' as under the amended rules effective December 2010.

p. 2
02

Whether the applicable rule required service or mere sending of the letter requesting proceedings

Holding

Rule 81(2) as it existed at the time only required that the copy be 'sent'; the stricter requirement of 'served' came in with the December 2010 amendments and did not apply retroactively to this appeal.

Reasoning

The applicant argued that non-service of the letter requesting proceedings meant the 60-day period ran from the notice of appeal, expiring 13th September, 2010. The court held that the rule as it then existed required only that the copy be sent, and it was attached to the notice of appeal which the applicant admitted receiving, defeating the strike-out application.

p. 2

Legal principles established

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  • Where a certificate of delay shows the court proceedings were ready for collection after the 60-day period had begun running, and the letter requesting proceedings was attached to and served with the notice of appeal, the record of appeal filed thereafter is within time and will not be struck out.

Court orders

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  1. 1.The application dated 5th November, 2010 is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 80
  • Court of Appeal RulesRule 42
  • Court of Appeal RulesRule 81(2)
On appeal from
High Court of Kenya at Eldoret
H. C. C. No. 61 of 2008
Jurisdiction invoked
Rules 80 and 42 of the Court of Appeal Rules (application to strike out a record of appeal lodged out of time)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Kipsirgoi Investments Ltd v Kenya Anti-Corruption Commission [2011] KECA 326 (KLR)", Case Analysis (2011). Civil Appeal (Application) No. 288 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/326/eng@2011-03-25

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