Michael Ochieng v Joseph Nyaumba Weya & another [2013] KECA 537 (KLR)
The bottom line
#Kenya's Court of Appeal refused to strike out an appeal, holding that striking out is a drastic step reserved only for the clearest cases.
What this practically means
#Executive summary
#Key legal issues
#Whether the letter bespeaking proceedings existed and was served
The certificate of delay, which was undisputed, established that the application for certified copies was made on 1st October 2012 and a copy was served and receipt acknowledged
The Deputy Registrar, an independent person, certified that Odera Obar & Company Advocates applied for certified proceedings on 1st October 2012. The applicant never challenged that certificate, so his claim that his advocate perused the file and found no such letter could not stand. A copy of the letter annexed to the replying affidavit showed service and a signature of receipt on the respondents' own rubber stamp.
Standard for striking out a notice of appeal on a forgery allegation
Striking out is draconian and cannot rest on a doubtful forgery allegation which the applicant bore the burden of proving
The court compared the signature on the letter with the signature on the pupil's affidavit and the notice of appeal and found them indistinguishable. The pupil admitted signing the notice of appeal but never specifically denied the signature on the bespeaking letter. Even applying the civil standard of balance of probabilities, so doubtful an allegation could not justify the drastic remedy of striking out an appeal.
Relevance of late collection of proceedings to the application
The ground was misconceived because the application sought striking out of the notice of appeal, not the record, and the alleged delay was unproven
Counsel's submission that the respondents delayed collecting ready proceedings could not sustain striking out of the notice of appeal for non-filing of a record within sixty days, particularly as the record had in fact been filed on 30th April 2013 with a certificate of delay. Further, there was no evidence the respondents had been informed the proceedings were ready.
Legal principles established
#- A notice of appeal will not be struck out on doubtful allegations of non-service or forgery; striking out is reserved for the clearest of cases
- Where a party denies a signature on a served document, the burden of proving that denial rests on the party making it
- A party cannot be punished for late filing of a record of appeal where there is no evidence they were served with notice that proceedings were ready for collection
Court orders
#- 1.The Notice of Motion dated 22nd February 2013 seeking striking out of the Notice of Appeal is dismissed
- On appeal from
- High Court of Kenya at Kisumu
- H.C.C.C. Misc. Appl. No. 60 of 2012
- Jurisdiction invoked
- Rule 82 of the Court of Appeal Rules (application to strike out a notice of appeal deemed withdrawn under that Rule)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Michael Ochieng v Joseph Nyaumba Weya & another [2013] KECA 537 (KLR)", Case Analysis (2013). Civil Application No. 3 of 2013 (UR. 1/2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/537/eng@2013-05-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.