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Court of AppealDismissedCivil Appeal 151 of 2012· [2012] KECA 34 (KLR)

JOSHUA NYAMACHE T. OMASIRE v CHARLES KINANGA MAENA [2012] KECA 34 (KLR)

Court of Appeal
28 November 2012
1,724 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to strike out an appeal over a late filing because the delays were the court registry's fault and the applicant hid the truth.

What this practically means

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Executive summary

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This ruling of the Court of Appeal (Onyango Otieno, Visram and Nambuye, JJA) determined a Notice of Motion by Joshua Nyamache T. Omasire seeking to strike out the record of appeal filed by Charles Kinanga Maena against a judgment of Musinga J in Kisii HCCC No. 153 of 2003 delivered on 27th July 2012 (decision dated 27th July 2010). The applicant argued that the record, filed 23rd May 2012, was out of time because the respondent received proceedings on 1st March 2012 and had obtained an erroneous certificate of delay. The Court dismissed the application. It found the applicant did not come with clean hands: he knew the respondent had bespoken proceedings on 28th July 2010 yet exploited the certificate of delay's clear mistake citing 16th January 2012. The certified decree was only issued on 4th May 2012, the file was subject to two competing applications for proceedings, and the file had been misplaced. These delays were attributable to the Registry, making it impossible to conclude the record was out of time; any doubt favoured hearing the appeal on merit, which raised important matters of law. Invoking Sections 3A and 3B of the Appellate Jurisdiction Act and Article 159 of the Constitution, the Court held this was a proper case to ensure the substance of the appeal was heard. The application was dismissed with costs to the respondent in the motion, who is the appellant in Civil Appeal No. 151 of 2012.

Key legal issues

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01

Whether the record of appeal was filed out of time

Holding

The application to strike out fails because the delays attributable to the Registry in certifying the decree and issuing the certificate of delay make it impossible to conclude the record was filed out of time, and any doubt favours hearing the appeal on merit

Reasoning

The court found that the applicant's own application for proceedings on the same file delayed the respondent's application; the certificate of delay contained a clear error, misstating the date of the letter bespeaking proceedings as 16th January 2012 instead of 29th July 2010; the certified decree was only issued on 4th May 2012; and these circumstances, including the misplacement of the file, made the timeliness computation unreliable.

p. 3
02

Whether the applicant came to court with clean hands

Holding

The applicant did not, because he knew the respondent applied for proceedings on 28th July 2010 yet exploited the certificate's clear mistake citing 16th January 2012

Reasoning

The court held that counsel knowingly relied on an obvious error in the certificate of delay to seek striking-out orders, omitted the delay in obtaining the certified decree, and failed to disclose that the same file was the subject of competing applications for proceedings which necessarily delayed the respondent's request.

p. 3

Legal principles established

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  • Where delays in obtaining a certificate of delay and certified decree are attributable to the court Registry, the record of appeal will not be struck out as filed out of time; doubts on timeliness favour hearing the appeal on merit.
  • The Court will invoke its inherent powers under Sections 3A and 3B of the Appellate Jurisdiction Act and Article 159 of the Constitution to secure that the substance of an appeal is heard and decided on merit where the litigant has been keen to prosecute the appeal.

Court orders

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  1. 1.The Notice of Motion dated 5th June 2012 is dismissed
  2. 2.Costs of the application are awarded to the respondent in the Notice of Motion (the appellant in Civil Appeal No. 151 of 2012)

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Appellate Jurisdiction ActSections 3A and 3B
  • Court of Appeal RulesRule 81
On appeal from
High Court of Kenya at Kisii
Kisii HCCC No. 153 of 2003
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act; Rule 81 of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "JOSHUA NYAMACHE T. OMASIRE v CHARLES KINANGA MAENA [2012] KECA 34 (KLR)", Case Analysis (2012). Civil Appeal 151 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/34/eng@2012-11-28

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