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Court of AppealDismissedCivil Application No. 139 of 2011· [2012] KECA 135 (KLR)

Navinchandra Bharmal Shah v Mukesh Manubhai Patel & 2 others [2012] KECA 135 (KLR)

Court of Appeal of Kenya
28 March 2012
EOE.O. O'KubasuAVAlnashir VisramHOH.M. Okwengu
1,535 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 where the delay was caused by the courts, not the appellants.

What this practically means

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Executive summary

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This was a ruling of a three-judge bench of the Court of Appeal at Nairobi on a Notice of Motion brought by Navinchandra Bharmal Shah, the decree-holder in a suit determined by Nambuye, J on 12th March 2010. The applicant sought an order deeming the respondents' Notice of Appeal dated 15th March 2010 and filed on 22nd March 2010 to have been withdrawn, on the ground that the intended appellants had taken no steps to lodge the appeal for over a year, thereby prejudicing his enjoyment of the fruits of the decree. The application was expressed to be brought under the Appellate Jurisdiction Act and Rule 83 of the Court of Appeal Rules, with the respondents invoking the inherent jurisdiction under sections 3A and 3B of the Act. In response, Pravin T. Parmar deponed that the respondents' advocates had lodged the Notice of Appeal, bespoken proceedings, visited the registry repeatedly and written letters of inquiry, but the proceedings had not been supplied. The court accepted that genuine efforts had been made, found that the delay in providing copies of proceedings rested with the administration of the courts, and held that the respondents were not to blame. Concluding that allowing the application would cause injustice, it disallowed the motion with no orders for costs, urged the parties to expedite the intended appeal, and directed the Deputy Registrar to assist in compiling and lodging the record of appeal. The High Court judgment remained undisturbed and the intended appeal was left to proceed.

Key legal issues

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01

Whether the intended appeal should be deemed withdrawn for inordinate delay in lodging the record of appeal

Holding

The application to strike out the Notice of Appeal fails where the appellant has not been indolent and the delay is attributable to the court's administration

Reasoning

The court weighed the applicant's complaint that the respondents had taken no steps after filing the Notice of Appeal against the respondents' evidence of letters, physical visits to the registry and bespeaking of proceedings. It concluded that the respondents had made genuine efforts and that the delay in furnishing certified proceedings rested with the registry. Striking out would cause injustice, so the inherent jurisdiction under sections 3A and 3B favoured allowing the appeal to proceed.

p. 4

Legal principles established

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  • Where an intended appellant has diligently pursued the obtaining of proceedings and the delay in compiling the record of appeal is attributable to the court administration, the Notice of Appeal will not be struck out as deemed withdrawn

Court orders

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  1. 1.The application to strike out the Notice of Appeal is disallowed
  2. 2.No orders for costs
  3. 3.The parties are urged to expedite the lodging and final determination of the intended appeal
  4. 4.The Deputy Registrar is directed to assist in compiling and lodging the record of appeal

Authorities

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Legislation

  • Appellate Jurisdiction Act (Cap 9, Laws of Kenya)sections 3A and 3B
  • Court of Appeal RulesRule 83
  • Court of Appeal RulesRules 75(1) and (2)
  • Court of Appeal RulesRule 82
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 165 of 2007
Jurisdiction invoked
Appellate Jurisdiction Act (Cap 9), sections 3A and 3B, and Rule 83 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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Later judgments citing this (1)

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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, "Navinchandra Bharmal Shah v Mukesh Manubhai Patel & 2 others [2012] KECA 135 (KLR)", Case Analysis (2012). Civil Application No. 139 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/135/eng@2012-03-28

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