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Court of AppealDismissedCivil Application No. NAI. 124 of 2012 (UR 93 A/2012)· [2013] KECA 110 (KLR)

James Gitahi Mwangi v Simba Colt Motors Limited [2013] KECA 110 (KLR)

Court of Appeal
8 November 2013
1,261 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that the clock for filing an appeal only starts when the court registry officially tells you your proceedings are ready.

What this practically means

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Executive summary

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This ruling of the Court of Appeal at Nairobi (Kihara Kariuki, PCA, M'inoti and J. Mohammed, JJ.A) disposes of an application by James Gitahi Mwangi to strike out a notice of appeal lodged by Simba Colt Motors Limited against an award of the Industrial Court in Industrial Cause No. 448 (N) of 2009, in which the applicant had been awarded commission for the period August 2006 to May 2009, subject to netting of one month's salary in lieu of notice. The applicant argued that the notice was an abuse of process because no steps had been taken to file the intended appeal for over 100 days after the proceedings were ready, yet the respondent enjoyed a stay of execution; he relied on Abubakar vs Baya. The respondent, through an affidavit of its legal and administrative manager, explained that it had requested proceedings by letter dated 8th February 2012, that the Deputy Registrar of the Industrial Court notified the parties on 22nd May 2012 that the proceedings were ready, and that a certificate of delay was issued on 29th May 2012; the intended appeal had by then been filed as Civil Appeal No. 120 of 2012. The Court held, applying the proviso to Rule 82(1) of its Rules, that time for filing runs from the Registrar's official notification, not from informal acquisition of proceedings, and that the delay was attributable to the administration of the Industrial Court, not the respondent. Guided by sections 3A and 3B of the Appellate Jurisdiction Act, sections 1A and 1B of the Civil Procedure Act and constitutional norms against technicality, the Court disallowed the application, directed that the appeal be listed for hearing on a priority basis, and made no orders as to costs.

Key legal issues

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01

Commencement of time for filing a record of appeal

Holding

Time runs from official notification by the Registrar of the superior court that proceedings are ready, i.e. 22nd May 2012 in this case, not from any informal acquisition of the proceedings.

Reasoning

The Court applied the settled principle that the proviso to Rule 82(1) of the Court of Appeal Rules fixes the start of time at the Registrar's notification to the parties. The respondent requested proceedings by letter dated 8th February 2012; the Deputy Registrar of the Industrial Court notified the parties on 22nd May 2012 and a certificate of delay issued on 29th May 2012. Since the concession was that the delay was occasioned by the Industrial Court's administration, the respondent could not be faulted.

p. 3
02

Substantive justice over technicality in striking-out applications

Holding

Sections 3A and 3B of the Appellate Jurisdiction Act and sections 1A and 1B of the Civil Procedure Act, together with constitutional norms against technicalities, obliged the Court to disallow a striking-out application whose success would cause injustice.

Reasoning

The Court held that these overriding-objective provisions require it to 'take pause and consider the dictates of substantive justice', reinforced by constitutional norms enjoining justice without undue regard to technicalities. Striking out the notice of appeal would cause injustice to the parties, so the application was disallowed and the appeal directed to be listed on a priority basis.

p. 3

Legal principles established

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  • Under the proviso to Rule 82(1) of the Court of Appeal Rules, the time for filing an appeal starts to run from the date the appellant is notified by the Registrar of the superior court that the proceedings are ready for collection, not from the date the party obtained the proceedings by other means.
  • Sections 3A and 3B of the Appellate Jurisdiction Act and sections 1A and 1B of the Civil Procedure Act require the Court of Appeal to have regard to substantive justice over technicality in interlocutory applications such as striking out a notice of appeal.
  • An appellant is not to blame for delay in furnishing proceedings where that delay was occasioned by the administration of the superior court; such delay does not justify striking out the notice of appeal.

Court orders

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  1. 1.The application dated 30th April 2012 seeking to strike out the notice of appeal is disallowed
  2. 2.The Registrar of the Court is directed to have the appeal listed for hearing on a priority basis
  3. 3.No orders as to costs - each party to bear their own costs

Authorities

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Legislation

  • Appellate Jurisdiction Actsections 3A and 3B
  • Civil Procedure Actsections 1A and 1B
  • Rules of the Court of Appeal (implied)Rule 82(1) and its proviso

Cases cited (1)

  • Abubakar vs Baya
    (2006) 1 KLR 1
On appeal from
Industrial Court at Nairobi
Industrial Court Cause No. 448 (N) of 2009
Jurisdiction invoked
Appellate Jurisdiction Act (Cap 9 Laws of Kenya), sections 3A and 3B, and the inherent jurisdiction invoked to strike out a notice of appeal; the underlying appeal lies from an Industrial Court award

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, "James Gitahi Mwangi v Simba Colt Motors Limited [2013] KECA 110 (KLR)", Case Analysis (2013). Civil Application No. NAI. 124 of 2012 (UR 93 A/2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/110/eng@2013-11-08

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