Sacco Societies Regulatory Authority v Biashara Sacco Society Ltd (Civil Appeal (Application) 7 of 2013) [2013] KECA 83 (KLR)
The bottom line
#Kenya's Court of Appeal refused to strike out an appeal over procedural defects, confirming courts will favour substance over technicalities when registry delays cause filing gaps.
What this practically means
#Executive summary
#Key legal issues
#Timeliness of filing the record of appeal where the court itself delayed issuing certified proceedings
The record of appeal filed on 19th April 2013 was timeously filed once the 220 days certified by the Deputy Registrar were excluded
The Deputy Registrar's certificate of delay confirmed that 220 days elapsed between the request for certified copies and their issuance. Under Rule 75(1) read with sub-rule (2), the notice of appeal was lodged within 14 days of the decision, and the record of appeal was due within the stipulated period excluding time taken by the court to prepare certified copies. The court therefore accepted the certificate of delay as excluding that period.
Whether a supplementary record of appeal requires leave
Under Rule 88, an appellant may file a supplementary record of appeal within 15 days of lodging the record of appeal without seeking leave of the court
The supplementary record of appeal was filed 14 days after the record of appeal, within the 15-day window provided by Rule 88, which allows an appellant to file omitted documents without leave. Counsel's submission that the supplementary record was filed without leave therefore disclosed no defect. The court treated the filing dates as compliant notwithstanding minor discrepancies in the pleaded dates.
Consequence of omitting a document (a further affidavit) from the record of appeal
The omission is curable under Rule 92 and is not a ground for striking out the appeal
Rule 92(1) entitles a respondent who considers the record defective or insufficient to lodge a supplementary record of appeal containing further documents required for the proper determination of the appeal. Since this remedy exists, striking out a competent appeal for a mere omission would render Rule 92 purposeless. The applicant remained at liberty to file its own supplementary record.
Effect of the Deputy Registrar's failure to endorse the date of lodgment of the notice of appeal
The failure was an oversight by the Deputy Registrar for which the appellant could not be blamed
Although the date of lodgment was not endorsed on the notice, the Deputy Registrar had signed it, and the court's date stamp showed filing on 28th August 2012, within 14 days of the ruling delivered on 17th August 2012. The defect, if any, was attributable to the registry and could not defeat the appeal.
Legal principles established
#- A record of appeal is deemed filed within time where the delay is attributable to the court's own delay in preparing certified copies, as evidenced by a certificate of delay
- A competent appeal cannot be struck out merely because a document that ought to have been included in the record of appeal was omitted, since Rule 92 provides a cure for such omission
- An appellant cannot be penalised for the Deputy Registrar's failure to endorse the date of lodgment of a notice of appeal where the Registrar signed the notice
- An application mis-cited under Rule 85 may be dealt with under Rule 84 in line with Article 159(2)(b) of the Constitution
Court orders
#- 1.The application to strike out the notice of appeal, the record of appeal and the supplementary record of appeal was dismissed
- 2.Costs of the application awarded to the respondent
- 3.The application was deemed to have been rightfully filed under Rule 84 of the Court of Appeal Rules
- On appeal from
- High Court of Kenya (Nyeri)
- Not stated
- Jurisdiction invoked
- Rule 84 (as substituted for Rule 85) of the Court of Appeal Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sacco Societies Regulatory Authority v Biashara Sacco Society Ltd (Civil Appeal (Application) 7 of 2013) [2013] KECA 83 (KLR)", Case Analysis (2013). Not stated in the judgment (Civil Application - Notice of Motion under Rule 84 of the Court of Appeal Rules). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/83/eng@2013-11-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.