Jemimah Caleb Otieno v Mary Ang’awa & another [2015] KECA 200 (KLR)
The bottom line
#Kenya's Court of Appeal refused to strike out an appeal filed without a certificate of delay, but warned the appellant to fix the record within thirty days or lose it.
What this practically means
#Executive summary
#Key legal issues
#Service of the record of appeal within Rule 90
Service on the respondents' advocates on 12th March 2013 was within the seven-day period since the record was lodged on 6th March 2013; the complaint of late service was rejected.
The respondents' own advocates requested postponement of service by letter dated 12th March 2013 to seek instructions while confirming they remained on record. The court held that service on L. G. Menezes Advocates was effected within the seven days permitted under Rule 90, and therefore the respondents' complaint that service only occurred on 6th June 2014 was misplaced and was rejected.
Timeliness of the application to strike out under the proviso to Rule 84
The proviso to Rule 84 does not apply where the contention is that the record of appeal was served out of time; the application was not out of time.
The appellant argued the striking-out application violated the proviso to Rule 84 requiring application within thirty days of service. The court, relying on Lither Peter Muia, held that proviso could not have been intended for situations where the complaint is late service of the record; a party cannot be penalised for failing to act in 30 days when it has at least 60 days to perform the act.
Institution of the appeal within Rule 82 despite absence of a certificate of delay
The appellant was entitled to the benefit of the proviso to Rule 82 excluding time for preparation of proceedings, having applied for proceedings within thirty days; striking out was declined and a supplementary record with a certificate of delay ordered.
Both the advocate's letter of 9th November 2012 and the appellant's own letter of 23rd November 2012 seeking proceedings fell within the thirty-day window of the proviso to Rule 82. Although the record lacked a certificate of delay, the court computed the sixty days excluding the notice date and Christmas vacation, and found the appellant had demonstrated entitlement to extension of time, making striking out inappropriate; a supplementary record was ordered instead.
Legal principles established
#- The proviso to Rule 84 does not apply where the complaint is that a record of appeal was served out of time; a party cannot be penalised for failing to act within 30 days when the Rules allow at least 60 days.
- In computing the sixty-day period under Rule 82, the date of lodging the notice of appeal and the period of the Christmas vacation are excluded.
- An appeal may be saved from striking out where the appellant was otherwise entitled to the benefit of the proviso to Rule 82, notwithstanding the omission of a certificate of delay, subject to filing a supplementary record.
Court orders
#- 1.The respondents' Notice of Motion dated 18th June 2014 is declined
- 2.The appellant to file, within thirty days from delivery of the Ruling, a supplementary record of appeal containing a certificate of delay
- 3.Failing compliance, the appeal shall stand struck out with costs to the respondents
- 4.The respondents shall have the costs of the application
- On appeal from
- High Court of Kenya at Kisumu
- HCCC No. 83 of 2007
- Jurisdiction invoked
- Court of Appeal Rules (Rules 80, 84, 85) - application to strike out an appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jemimah Caleb Otieno v Mary Ang’awa & another [2015] KECA 200 (KLR)", Case Analysis (2015). Civil Appeal (Application) No. 3 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/200/eng@2015-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.