Peter Handerson & 1 other v Richard Bell & 1 other
The bottom line
#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
#Executive summary
#Key legal issues
#Whether a notice of appeal should be struck out where no record of appeal has been filed within the prescribed sixty days
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.
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.
Whether the overriding objective and Article 159(2)(d) justify excusing the delay
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.
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.
Legal principles established
#- 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
#- 1.The notice of appeal dated 13th February 2014 and lodged on 14th February 2014 was struck out
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.