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Court of AppealDismissedCivil Application No. NAI. 234 of 2012· [2013] KECA 86 (KLR)

Justus Majau v Erastus Muriungi (Deceased) Thro' Janet Mwari Muriungi [2013] KECA 86 (KLR)

Court of Appeal
10 December 2013
1,051 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that asking for certified court proceedings pauses the appeal deadline, protecting litigants from the courts' own delays.

What this practically means

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Executive summary

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This was a ruling of the Court of Appeal at Nyeri (Visram, Koome and Odek, JJ.A) on a Notice of Motion dated 3rd July 2012 brought under Rule 82 of the Court of Appeal Rules and sections 3A and 3B of the Appellate Jurisdiction Act. The applicants, who had obtained a High Court judgment dated 2nd November 2007 declaring that the deceased held the suit property in trust for them, sought to strike out the Notice of Appeal lodged by the deceased's legal representative on 9th November 2007 and to discharge the stay of execution granted by the High Court on 23rd January 2009, on the ground that no appeal had been instituted within the time prescribed. The respondent explained that she had requested certified proceedings by letter dated 5th November 2007 and had made numerous requests since, but the High Court had not availed the proceedings. The court applied its earlier decisions in Mariamu Abubakar Ireri v National Cereals & Produce Board and Nyeri Wholesalers v Kasturi, holding that time for filing an appeal stops running upon a request for certified proceedings copied to the opposing counsel and resumes only upon delivery of those proceedings. It found no evidence of non-service of the request letter and held the intended appeal was not time barred. The application was dismissed with costs to the respondent. The judgment is binding on the High Court on the computation of time under Rule 82 where certified proceedings remain unavailed.

Key legal issues

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01

Whether the intended appeal was time barred under Rule 82 of the Court of Appeal Rules

Holding

Time for instituting the appeal stopped running on 5th November 2007 when the respondent requested certified proceedings and could only resume upon delivery of those proceedings; since the High Court has not availed them, the appeal is not time barred

Reasoning

Rule 82 requires an appeal to be instituted within sixty days of the Notice of Appeal, excluding any period certified by the registrar as required to prepare proceedings. The respondent requested certified copies by letter dated 5th November 2007 and made numerous follow-up requests without success. Following Mariamu Abubakar Ireri and Nyeri Wholesalers, the requested period is excluded in computing time, so the appeal cannot be struck out as time barred.

p. 3
02

Whether the applicants proved that the letter requesting proceedings was not served on their counsel

Holding

There was no evidence in support of the applicants' contention that the request letter was never served on their advocates

Reasoning

The applicants bore the burden of establishing non-service of the letter requesting certified proceedings, which would have defeated the exclusion of time. Counsel's argument that the letter was not served was unsupported by evidence, and the respondent's counsel denied this. The court was not persuaded, and the computation of time proceeded on the basis that the request was properly copied to the applicants' counsel.

p. 2

Legal principles established

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  • Upon requesting copies of proceedings from the court where the request letter is copied to the opposing party's counsel, the time prescribed for filing an appeal stops running and resumes only when the certified proceedings are delivered
  • Where certified proceedings requested by a party have not been availed by the High Court, the intended appeal cannot be time barred under Rule 82, as the excluded period remains uncomputed

Court orders

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  1. 1.The applicants' application dated 3rd July 2012 to strike out the Notice of Appeal is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 82
  • Appellate Jurisdiction Act, Chapter 8, Laws of KenyaSection 3A
  • Appellate Jurisdiction Act, Chapter 8, Laws of KenyaSection 3B

Cases cited (2)

  • Mariamu Abubakar Ireri & another -vs- National Cereals & Produce Board
    Civil Application No. 92 of 2008
  • Nyeri Wholesalers Limited -vs- Kasturi Limited
    Civil Application No. Nai. 132 of 2012
On appeal from
High Court of Kenya at Meru
H.C.C.C No. 54 of 1986
Jurisdiction invoked
Rule 82 of the Court of Appeal Rules and Section 3A & 3B of the Appellate Jurisdiction Act, Chapter 8, Laws of Kenya

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, "Justus Majau v Erastus Muriungi (Deceased) Thro' Janet Mwari Muriungi [2013] KECA 86 (KLR)", Case Analysis (2013). Civil Application No. NAI. 234 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/86/eng@2013-12-10

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