SAFE RENTALS LIMITED v AFRICAN SAFARI CLUB LTD [2011] KECA 349 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal filed late because the appellant could not explain two conflicting certificates of delay, one of which was found misleading.
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 respondent's application to strike out the record of appeal as incompetent should be allowed
- 2.Whether the appellant's application to expunge the certificate of delay dated 31st May 2010 and to file a supplementary record of appeal should be allowed
- 3.Which of the two conflicting certificates of delay is valid and whether the appeal was filed within the 60-day period stipulated by the Court of Appeal Rules
- 4.Whether the burden lay on the appellant to explain how it came to possess two certificates of delay
Key legal issues
#Validity of conflicting certificates of delay
A certificate of delay is not absolute and can be inquired into; where two certificates conflict, the court may examine the circumstances and hold the misleading one invalid.
The record contained two certificates of delay with different dates on which proceedings were ready for collection. The later certificate of 23rd July 2010, relied on by the appellant, would render the appeal timely, but the court found its presence unexplained and designed to mislead. The appellant bore the burden under Section 112 of the Evidence Act to explain how it obtained two certificates, which it failed to discharge.
Burden of proof in civil proceedings for facts within a party's knowledge
The appellant bore the burden under Section 112 of the Evidence Act to explain how it came to possess two certificates of delay, and its failure to do so was fatal.
The court applied Section 112 of the Evidence Act, noting that only the appellant could explain how it came to be in possession of two certificates of delay. The deponent, counsel Judith Sijeny, did not receive the documents directly from the court, and the previous advocates who did never swore an affidavit explaining the two certificates. The appellant's assertion that the earlier certificate was incorrect had no basis.
Limits of the overriding objective and Article 159
The overriding objective and the constitutional command against over-reliance on technicalities cannot be invoked by a party who seeks to mislead the court.
Although the court has power under Article 159 of the Constitution and Sections 3A and 3B of the Appellate Jurisdiction Act to facilitate the just, expeditious, proportionate and affordable resolution of disputes and to obviate over-reliance on technicalities, the court held that this power cannot be exercised to assist a party whose conduct, exemplified by the misleading certificate of delay, casts aspersions on its good faith.
Consequences of filing a record of appeal out of time without leave
With the invalidation of the certificate of delay dated 23rd July 2010, the appeal filed on 30th July 2010 was outside the 60-day period and incompetent, and was struck out.
The appellant did not file a record of appeal until 30th July 2010, well outside the 60 days stipulated by the Court of Appeal Rules. Ordinarily such an appeal is incompetent. The appellant sought to rely on the proviso to rule 81 through certificates of delay, but the court invalidated the later certificate, leaving the appeal time-barred and without leave, hence struck out with costs.
Legal principles established
#- A certificate of delay is not absolute; the court may inquire into its validity and may refuse to lend its process to a party who uses a certificate of delay to mislead it.
- In civil proceedings, a party seeking the exercise of the court's discretion must disclose all material facts, demonstrate good faith, and offer a reasonable and full explanation for failure to take the essential step within the time stipulated in the rules.
- Under Section 112 of the Evidence Act, where a fact is especially within the knowledge of a party, the burden of proving or disproving it rests on that party.
- The overriding objective under Article 159 of the Constitution and Sections 3A and 3B of the Appellate Jurisdiction Act does not avail a party who seeks to mislead the court.
- A record of appeal filed out of the 60 days stipulated by the Court of Appeal Rules, where no valid certificate of delay extends the time and no leave has been granted, is incompetent and liable to be struck out.
Court orders
#- 1.The appellant's application (filed 17th November 2010) seeking to expunge the certificate of delay dated 31st May 2010 and leave to file a supplementary record of appeal is dismissed with costs to the respondent
- 2.The certificate of delay dated 23rd July 2010 is declared invalid
- 3.Civil Appeal No. 225 of 2010, having been filed out of time without leave of the court, is declared incompetent and struck out
- 4.Costs of the motion dated 25th August 2010 and of the appeal are awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Mombasa
- H.C.C.C. No. 130 of 2006
- Jurisdiction invoked
- Appellate Jurisdiction Act, Sections 3A and 3B; Court of Appeal Rules 42(1), 44(1), 47, 64(1) and 80; Article 159(2)(b) and (d) of the Constitution of Kenya
Relief refused
#The appellant's application under rules 44(1), 47 and 64(1) to expunge the certificate of delay dated 31st May 2010 and to file a supplementary record of appeal
The court found the certificate of delay dated 23rd July 2010, which the appellant relied on, was meant to mislead the court and the appellant had failed to candidly explain its possession of two conflicting certificates
The appellant's appeal, which was struck out as incompetent
Once the certificate of delay dated 23rd July 2010 was held invalid, the record of appeal filed on 30th July 2010 fell outside the 60-day period prescribed by the Court of Appeal Rules
Costs
The appellant's application is dismissed with costs to the respondent; the record of appeal is struck out with costs both of the motion dated 25th August 2010 and of the appeal to the respondent 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.
This Court has held time and again that a certificate of delay is not absolute. The court can, if necessary, inquire into its validity.
The applicant has to disclose all material facts, demonstrate good faith, and offer reasonable and full explanation, where necessary, as to the reason for its failure to take the essential step for which the court's discretion is invited to sanction, within the time stipulated in the rules for doing so.
In Civil Proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.
While the court has power under both Article 159 of the Constitution and Sections 3A and 3B of the Appellate Jurisdiction Act to bear in mind the overriding objective of civil litigation, namely to facilitate the just, expeditious, proportionate and affordable resolution of matters before it and to obviate over reliance on technicalities of procedure, it should not assist a party who seeks to mislead it, as in this case.
Consequently it is struck out with costs both of the motion dated 25th August 2010 and of the appeal to the respondent in the appeal.
Issues in the judgment
#The dispositive passage contains an apparent internal contradiction: it states the appellant's application is dismissed, yet immediately adds a sentence that the appellant's application must succeed.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Michael Mwalo v Board of Trustees National Social Security Fund [2014] KECA 706 (KLR)[2014] KECA 706 (KLR)14 Mar 2014applied
Cite this brief
#Cite this brief
Caselaw, "SAFE RENTALS LIMITED v AFRICAN SAFARI CLUB LTD [2011] KECA 349 (KLR)", Case Analysis (2011). Civil Appeal (Application) No. 225 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/349/eng@2011-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.