Rodgers Abisai T/A Abisai & Company Advocates v Wachira Waruru & another [2014] KECA 378 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a party cannot lose their appeal because the court registry delayed supplying court proceedings.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondents' Notice of Appeal should be marked and/or deemed withdrawn for failure to institute an appeal within the prescribed period under Rule 84 of the Court of Appeal Rules
- 2.Whether the respondents were guilty of indolence and laches warranting condemnation despite having timely applied for copies of proceedings
- 3.Whether, absent formal communication from the court registry that certified copies of proceedings and judgment were ready for collection, time under the proviso to Rule 82 and Rule 83 had expired
- 4.Whether the stay of execution granted in Civil Application No. 141 'B' of 2007 should be discharged consequent upon the deeming of the Notice of Appeal as withdrawn
Key legal issues
#Whether time under the proviso to Rule 82 and Rule 83 of the Court of Appeal Rules had expired against the respondents
It had not, because the respondents applied for copies of proceedings in time and the registry never formally indicated the copies were ready for collection
The Notice of Appeal was timeously filed and the letter bespeaking copies was written and served in time on 30th May 2007. The court found no formal response from the registry was ever issued. Although the respondents should have sent reminders and visited the registry, the duty to prepare and supply the copies remains the registry's. Punishing a party for delay caused by the registry's failure to supply copies would be unfair and would amount to the height of injustice.
Whether indolence and failure to follow up on the registry justified deeming the Notice of Appeal withdrawn
No; reminders and visits are desirable to keep the registry on its toes, but they are not a precondition to being excused where the registry has not communicated readiness of the copies
The court accepted that the respondents should have sent written reminders and made registry visits, but held that such steps merely serve to remind the registry of its duty. Because the applicant conceded there was no formal response from the registry, and the respondents had partially obtained proceedings through follow-up, the delay was attributable to the registry and the deeming order could not issue.
Relevance of the three authorities cited by the applicant
All three were distinguished as factually inapposite
In Allan Oduor Osoro the copies and certificate of delay had been availed but counsel simply failed to prepare the record; in Abdi Nassir Nuh the complaint concerned a defective record lacking primary documents; James Ogendi was a High Court decision under the Civil Procedure Rules, not this Court's Rules. None concerned a case where copies applied for were never supplied and no communication of readiness was ever issued, as here.
Legal principles established
#- Where a party has timeously applied for certified copies of proceedings and judgment and the court registry has never formally responded that the copies are ready for collection, that party cannot be condemned for failure to lodge the record of appeal within the prescribed time
- The duty to prepare and supply typed copies of proceedings rests on the court registry, and a litigant cannot be punished for inordinate delay attributable to the registry's failure to supply the copies despite reminders and follow-up
- A litigant who has applied for copies of proceedings has no executive power over the court registry and must in practice accept that the registry has its own system of work which it must honour
Court orders
#- 1.The Notice of Motion dated 31st March 2014 seeking to mark the Notice of Appeal dated 23rd May 2007 as withdrawn is dismissed
- 2.The applicants to pay the respondents' costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi (from Kisii H.C.C. No. 52 of 2001)
- Kisii H.C.C. No. 52 of 2001
- Jurisdiction invoked
- Inherent jurisdiction under Sections 3A and 3B of the Appellate Jurisdiction Act and the Court of Appeal Rules (application to deem a Notice of Appeal withdrawn under Rule 84 regime of the Court of Appeal Rules)
Relief refused
#Order marking/deeming the Notice of Appeal dated 23rd May 2007 as withdrawn
Without formal communication from the court registry that the copies of proceedings applied for were ready for collection, the respondents cannot in law be condemned for the delay
Discharge/variation of the stay of execution granted on 3rd July 2007 in Civil Application No. 141 'B' of 2007
It was consequential on prayer (1), which was refused; the application was dismissed in its entirety
Costs
Application dismissed with costs to the respondents.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the absence of any reply from the Deputy Registrar as to whether certified or uncertified copies of proceedings and judgment are available or not, it would be the height of injustice to condemn the respondents
without a formal communication from the court registry informing the respondents that the copies of proceedings they applied for are ready for collection, the respondents cannot in law be condemned and the Notice of Appeal timeously filed be deemed as withdrawn
The party that has applied for such copies has no executive powers on the Court's Registry and thus while agitating the registry to act quickly and supply the copies, must in practice accept that the registry has its own system of work which it must honour
this application cannot succeed. It is dismissed with costs to the respondents.
Issues in the judgment
#The coram heading and the certificate of service spell the third judge's name inconsistently ('KANTAI' in the coram, 'S. ole KANTAI' in the signature block); the panel and judgeOpinions fields adopt the fuller signature form
The judgment states the application was 'dismissed with costs to the respondents' while prayer 4 of the applicant's motion sought costs 'be borne by the Respondents' - a normal outcome mismatch, recorded here for completeness
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rodgers Abisai T/A Abisai & Company Advocates v Wachira Waruru & another [2014] KECA 378 (KLR)", Case Analysis (2014). Civil Application No. 19 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/378/eng@2014-09-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.