Githara Chuchu & 473 others v Kenya Planters Co-operative Union Ltd [2014] KECA 322 (KLR)
The bottom line
#Kenya's Court of Appeal refused to kill an 8-year-old appeal because the court's own delay in supplying typed proceedings, not the appellant, caused the missed deadlines.
What this practically means
#Executive summary
#Key legal issues
#Striking out notices of appeal for failure to file the record within the appointed time
The application to strike out the two notices of appeal fails because the delay was largely attributable to the court's failure to supply typed proceedings, not the respondent's negligence
The respondent had requested the typed proceedings in time but they were not supplied, and the respondent's letters to the High Court went unanswered. While respondent's counsel should have pursued the proceedings more proactively, the larger part of the blame lay with the court. Striking out would be unjustifiably punitive, especially since the proceedings were now ready and the record could be filed promptly.
Scope of the inherent jurisdiction under Sections 3A and 3B of the Appellate Jurisdiction Act
The oxygen rule cannot be used to introduce prayers that fall outside the applicable rules, such as a prayer to set aside a prior substantive ruling of the Court in a striking-out application
Sections 3A and 3B embody the oxygen principle, invoked only where the Court needs to step in to stem injustice where no other rules apply. The prayer to set aside the orders of 20th September 2013 could not be brought within the ambit of those provisions, and Rule 56, cited by the applicants' counsel, was irrelevant as it deals only with non-appearance.
Legal principles established
#- Sections 3A and 3B of the Appellate Jurisdiction Act (the oxygen rule) may only be invoked where no other rules are applicable and the justice of the case demands intervention
- Where a party who has filed a notice of appeal fails to institute the appeal within the appointed time, the notice may be struck out under Rules 83 and 84, but the court will not do so where the failure to supply proceedings is attributable to the court itself
- Substantive challenges to a prior ruling of the Court cannot be litigated in an interlocutory application to strike out notices of appeal; they repose in the intended appeal
Court orders
#- 1.The notice of motion application dated 17th December 2013 is dismissed with costs in the appeal
- 2.The appeal to be filed within 14 days from delivery of the ruling, failing which the appeal shall be deemed withdrawn pursuant to Rule 83 of the Court's Rules
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 3619 of 1983
- Jurisdiction invoked
- Rules 47, 83 and 84 of the Court of Appeal Rules and Sections 3A and 3B of the Appellate Jurisdiction Act (Cap 9)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Githara Chuchu & 473 others v Kenya Planters Co-operative Union Ltd [2014] KECA 322 (KLR)", Case Analysis (2014). Civil Application No. Nai 337 of 2013 (Ur 248/2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/322/eng@2014-10-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.