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Court of AppealPartially AllowedCivil Application No. NAI 180 of 2014· [2015] KECA 378 (KLR)

Peter Handerson & 1 other v Richard Bell & 1 other

Court of Appeal
25 September 2015
1,012 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out a notice of appeal after the appellant sat on his case for months without filing the required appeal documents or explaining the delay.

What this practically means

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Executive summary

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This was an interlocutory application before a three-judge bench of the Court of Appeal at Nairobi under rule 83 of the Court of Appeal Rules. The applicants, Peter Handerson and James David Robinson, sought an order that the 1st respondent Richard Bell's notice of appeal dated 13th February 2014, filed against a High Court judgment by Odunga J, be deemed withdrawn, on the ground that the sixty days allowed for lodging the record of appeal under rule 82(1) had lapsed without an appeal being filed. The 1st respondent opposed, asserting through a replying affidavit that the copy of proceedings supplied contained a discrepancy his firm intended to rectify, and contending that striking out is a draconian power to be exercised sparingly. The court found that the proceedings and judgment were ready for collection from 26th March 2015 (elsewhere stated as 16th March 2015), that no appeal had been filed since, that the alleged discrepancy was unidentified and unsupported, and that no application to enlarge time or arrest the delay had been made. The court held that Sections 3A and 3B of the Appellate Jurisdiction Act and Article 159(2)(d) of the Constitution do not permit procedural improprieties and require the court to weigh prejudice between the parties, applying Abdirahman Abdi v Safi Petroleum Products Ltd. The inaction of the 1st respondent disentitled him to the exercise of discretion in his favour. The application was allowed: the notice of appeal was struck out, with costs to the applicants. The decision binds the High Court and subordinate tribunals on the consequences of unexplained delay in filing a record of appeal.

Key legal issues

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01

Whether a notice of appeal should be struck out where no record of appeal has been filed within the prescribed sixty days

Holding

The court found the record of appeal ought to have been filed within sixty days under rule 82(1), that no appeal was filed within that period, and that no explanation for the delay was offered, so the notice of appeal was struck out.

Reasoning

Rule 82(1) requires the record of appeal to be filed within sixty days of lodging the notice of appeal. The 1st respondent filed no record of appeal, made no application to enlarge time or arrest the delay, and exhibited no proof of the alleged discrepancy in the copy of proceedings. The delay continued even after the application was heard. The court held that inaction since the proceedings were ready for collection disentitled the 1st respondent to the exercise of discretion in his favour.

p. 2
02

Whether the overriding objective and Article 159(2)(d) justify excusing the delay

Holding

No; those provisions do not permit procedural improprieties and require the court to weigh prejudice to the innocent party against prejudice to the offending party.

Reasoning

Counsel for the 1st respondent invoked Sections 3A and 3B of the Appellate Jurisdiction Act and Article 159(2)(d) of the Constitution to have the application disallowed. The court held that these provisions do not licence procedural impropriety; discretion is exercised by weighing the prejudice likely to be suffered by the innocent party against that of the offending party. Following Abdirahman Abdi v Safi Petroleum Products Ltd, and finding inaction by the 1st respondent, the discretion was refused.

p. 2

Legal principles established

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  • Sections 3A and 3B of the Appellate Jurisdiction Act and Article 159(2)(d) of the Constitution do not permit procedural improprieties; the court weighs the prejudice to the innocent party against that of the offending party before exercising its discretion on striking out
  • A party who takes no action to prosecute an appeal after proceedings are ready for collection, and who files no application to enlarge time, is disentitled to the court's discretion in his favour

Court orders

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  1. 1.The notice of appeal dated 13th February 2014 and lodged on 14th February 2014 was struck out
  2. 2.Costs of the application to be borne by the respondent in the application
On appeal from
High Court of Kenya at Nairobi
H.C. Misc. Civil Application No. 3 of 2011
Jurisdiction invoked
Rule 83 of the Court of Appeal Rules; inherent jurisdiction under Sections 3A and 3B of the Appellate Jurisdiction Act (Cap 9) and Article 159(2)(d) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Peter Handerson & 1 other v Richard Bell & 1 other", Case Analysis (2015). Civil Application No. NAI 180 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/378/eng@2015-09-25

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