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Court of AppealStruck OutCivil Appeal No. 284 of 2011

Fredrick Juma Osuru v Esther Atieno Osuru & another [2014] KECA 194 (KLR)

Court of Appeal of Kenya
14 November 2014
David Kenani MaragaD. K. MaragaFAF. AzangalalaSKS. ole Kantai
802 words in judgment
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The bottom line

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The Court of Appeal struck out an appeal because the appeal record was filed over nine months late without permission, despite a fully argued case on its merits.

What this practically means

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Executive summary

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The Court of Appeal at Kisumu (Maraga, Azangalala and Kantai, JJ.A) dealt with an appeal from the High Court judgment of Ali-Aroni, J dated 18 February 2011, which had dismissed an appeal from the Provincial Land Dispute Appeals Committee as statutorily time barred. The respondents' land dispute award from the Kisumu District Land Dispute Tribunal had been adopted as a judgment of the Chief Magistrate's Court. The appellate court did not disturb the High Court's substantive ruling because it disposed of the matter on a procedural ground. Although the Notice of Appeal was lodged timeously on 1 March 2011, the Record of Appeal was not filed until 21 December 2011, over nine months later, and no leave to lodge it out of time was sought. The Certificate of Delay annexed to the record was undated, lacked particulars of the time the High Court required to prepare proceedings, and no letter bespeaking proceedings served on the respondents was produced, so the proviso to Rule 82 of the Court of Appeal Rules was unavailable. The court criticised the Deputy Registrar for certifying a document apparently drawn by the appellant's counsel. Even after the respondents challenged the appeal's competence by letter dated 3 June 2014, counsel for the appellant took no steps to regularise the record, apparently content that no formal striking-out application had been filed. Holding the appeal incompetent, the court struck it out with costs to the respondents without addressing the fully argued merits.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Record of Appeal filed out of time without leave renders the appeal incompetent

Key legal issues

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01

Competence of the appeal for out-of-time filing of the Record of Appeal

Holding

The appeal was incompetent because the Record of Appeal was filed over nine months after the Notice of Appeal without leave, and the defective Certificate of Delay could not bring it within the proviso to Rule 82.

Reasoning

Rule 82 requires lodgement of the record within sixty days of the Notice of Appeal, excluding only certified preparation time. The Certificate of Delay was undated, lacked particulars of the time required to prepare proceedings, and no letter bespeaking proceedings served on the respondents was availed. Counsel made no attempt to regularise the record even after the respondents challenged competence. The court therefore declined to reach the merits, which had been fully argued.

p. 2

Legal principles established

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  • An appeal must be instituted by lodging the Record of Appeal within sixty days of the Notice of Appeal, excluding only time certified by the Registrar as required for preparing proceedings; failure to lodge within that period without leave renders the appeal incompetent.
  • The proviso excluding time applies only where the letter bespeaking proceedings was copied and served on the respondent, and a Certificate of Delay must specify the time the High Court required to prepare the proceedings.

Court orders

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  1. 1.The appeal is struck out as incompetent
  2. 2.Costs of the appeal awarded to the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

David Kenani Maraga
majority
FA
majority
SK
majority
On appeal from
High Court of Kenya at Kisumu
HCCA No. 5 of 2008
Jurisdiction invoked
Statutory appeal to the Court of Appeal under the Court's Rules (no constitutional provision invoked in the judgment)

Relief refused

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Hearing of the appeal on the merits

The appeal was incompetent as the Record of Appeal was lodged out of the stipulated period without leave; the Certificate of Delay was of no assistance.

p. 2

Costs

Appeal struck out with costs to the respondents

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The Record of Appeal was filed out of the stipulated period for instituting an appeal and no leave was sought or obtained to lodge the appeal out of time.
p. 2competence of appeal
It is indeed surprising that the Deputy Registrar of the High Court certified that document which was probably drawn by the counsel for the appellant in the form that we have set out.
p. 2defective Certificate of Delay
For these reasons, we find that this appeal is incompetent and it is hereby struck out with costs to the respondents.
p. 3final orders

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Fredrick Juma Osuru v Esther Atieno Osuru & another [2014] KECA 194 (KLR)", Case Analysis (2014). Civil Appeal No. 284 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/194/eng@2014-11-14

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