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Court of AppealDismissedCivil Application No. 17 of 2015 (UR 13/2015)· [2015] KECA 409 (KLR)

Erastus Onyango Nyamori v County Government of Migori & another [2015] KECA 409 (KLR)

Court of Appeal of Kenya
25 September 2015
DMD. K. MusingaSKS. Gatembu KairuAMA. K. Murgor
868 words in judgment
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The bottom line

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Kenya's Court of Appeal protected an employer's appeal because the court registry hadn't produced the typed proceedings needed to file the appeal record on time.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Kisumu (Musinga, Gatembu Kairu and Murgor, JJ.A.) dated 25th September 2015 on an application by Erastus Onyango Nyamori seeking to strike out the County Government of Migori's notice of appeal dated 17th December 2014 and to lift the stay orders of 23rd April 2015 that had halted execution of the Employment and Industrial Relations Court's orders of 3rd December 2014 reinstating the applicant and awarding him damages, and had stayed further proceedings in Industrial Cause No. 308 of 2014. The applicant argued that the respondents had failed to lodge the record of appeal within sixty days of filing the notice of appeal as required by rule 82 of the Court of Appeal Rules, and that the registry had verbally indicated the typed proceedings were ready for collection. The respondents showed that the notice of appeal was accompanied by a letter bespeaking the proceedings and the ruling, served on the applicant's advocates, and that they had neither been furnished with the documents nor received notice that the proceedings were ready. The court held there was no evidence the proceedings were ready, so the respondents could not be faulted for the delay; where a rule 82(2) application for proceedings is made within thirty days of the decision, the registrar-certified preparation period must be excluded. The court also rejected the respondents' contention that a striking-out application must be made within thirty days, holding such a reading absurd where the appellant has sixty days to lodge the record, following Lither Peter Muia & Another v Zuena Ngando Kababu [2015] eKLR. The application was dismissed with costs to the respondents, leaving the stay orders intact and the intended appeal preserved.

Key legal issues

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01

Whether failure to file the record of appeal within sixty days justified striking out the notice of appeal

Holding

No - the respondents had made a timeous application for proceedings, and there was no evidence the proceedings were ready, so the delay was excused.

Reasoning

The notice of appeal of 17th December 2014 was accompanied by a letter bespeaking proceedings and the ruling, and was served on the applicant's advocates. The applicant's claim that the registry had verbally informed him the proceedings were ready was unsupported by any evidence. Where a rule 82(2) application for proceedings has been made within thirty days of the decision, the registrar-certified preparation period is excluded from the sixty-day computation. Accordingly the respondents were not in default.

p. 2
02

Whether rule 84 requires an application to strike out a notice of appeal to be filed within thirty days

Holding

No - such a reading would be absurd given the appellant's sixty-day window to lodge the record of appeal.

Reasoning

The respondents argued that a rule 84 application must be made within thirty days of filing the notice of appeal. The court rejected this: since the appellant has up to sixty days from filing the notice to lodge the record, it would be an absurdity to bar the striking-out application after thirty days. The court supported this reading by reference to its earlier decision in Lither Peter Muia & Another v Zuena Ngando Kababu [2015] eKLR.

p. 2

Legal principles established

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  • Where an appellant applies for copies of proceedings under rule 82(2) within thirty days of the decision, the period certified by the registrar as required for preparation and delivery of the proceedings is excluded in computing the sixty-day period for lodging the record of appeal.
  • An application to strike out a notice of appeal under rule 84 need not be filed within thirty days of the filing of the notice of appeal; it would be absurd to impose such a limit when the appellant has sixty days to file the record of appeal.
  • A party cannot be faulted for failing to file the record of appeal within sixty days where there is no evidence that the typed proceedings were ready for collection.

Court orders

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  1. 1.Application dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(b)
  • Court of Appeal Rules, 2010Rule 82(1)
  • Court of Appeal Rules, 2010Rule 82(2)
  • Court of Appeal Rules, 2010Rule 83
  • Court of Appeal Rules, 2010Rule 84

Cases cited (1)

  • Lither Peter Muia & Another v Zuena Ngando Kababu
    [2015] eKLR
On appeal from
Employment and Industrial Relations Court (Industrial Court)
Industrial Cause No. 308 of 2014
Jurisdiction invoked
Rules 82(1), 83 and 84 of the Court of Appeal Rules, 2010 and Article 159(2)(b) of the Constitution of Kenya, 2010

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, "Erastus Onyango Nyamori v County Government of Migori & another [2015] KECA 409 (KLR)", Case Analysis (2015). Civil Application No. 17 of 2015 (UR 13/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/409/eng@2015-09-25

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