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Court of AppealDismissedCivil Appeal No. 33 of 2014· [2015] KECA 569 (KLR)

Grace Jelei Boit v Sammy Some Kosgei [2015] KECA 569 (KLR)

Court of Appeal of Kenya
24 June 2015
David Kenani MaragaD. K. MaragaDMD. K. MusingaSKS. Gatembu Kairu
2,262 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that requesting typed court proceedings stops the appeal deadline clock until you're told they're ready.

What this practically means

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Executive summary

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This interlocutory ruling of the Court of Appeal at Eldoret (Maraga, Musinga and Gatembu Kairu, JJ.A) determined two competing applications arising from an appeal against the Environment and Land Court's decree vesting two portions of land in the respondent following a sale by the appellant's deceased husband. The respondent applied under rule 82 to strike out the appeal as lodged out of time, contending the record of appeal filed on 28th February 2014 came over eleven months after the notice of appeal. The appellant cross-applied under rule 4 for enlargement of time. The court held that the dispositive question was whether the appeal was competent. Because the appellant applied in writing on 13th February 2013, within thirty days of judgment and copied to the respondent's advocates, for typed copies of the proceedings, the sixty-day period under rule 82(1) and its proviso was suspended pending preparation and delivery of the copy. Relying on the certificate of delay and the Deputy Registrar's letter of 27th January 2014, which the court preferred to the respondent's affidavit claiming to have witnessed earlier collection, the court found the period only resumed running on 27th January 2014 when the appellant was notified the proceedings were ready. The record filed on 28th February 2014 was therefore filed within time and the appeal is competent. The striking-out application was dismissed; the extension application was dismissed as unnecessary; each party was ordered to bear its own costs. This ruling binds subordinate courts and tribunals on the computation of time under rule 82(1).

Key legal issues

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01

Whether the record of appeal filed on 28th February 2014 was out of time

Holding

The appeal was competently and properly filed because the sixty-day period under rule 82(1) was suspended pending preparation and delivery of the typed proceedings

Reasoning

The appellant filed a notice of appeal on 13th February 2013, within rule 75(1) and (2), and on the same day applied in writing, copied to the respondent's advocates, for typed proceedings. Under rule 82(1) and its proviso the sixty-day period was therefore excluded until delivery. The certificate of delay and the Deputy Registrar's letter of 27th January 2014 established that the proceedings were only notified as ready in January 2014, which the court preferred over the respondent's claim to have witnessed collection in March 2013. The record filed on 28th February 2014 fell within sixty days of 27th January 2014.

p. 4
02

Computation of time where a certificate of delay conflicts with a party's affidavit evidence

Holding

The certificate of delay issued by the Deputy Registrar, corroborated by the Deputy Registrar's letter, prevails over the respondent's sworn assertion that he witnessed collection of the proceedings earlier

Reasoning

The respondent deposed that he personally witnessed the appellant collect the typed proceedings from the registry on 8th March 2013, which would have made the appeal grossly out of time. The court, however, found that the certificate of delay certifying preparation up to 8th March 2013 and notification only by letter dated 27th January 2014, together with a court receipt showing payment and collection on 30th January 2014, gave credence to the appellant's claim. On that documentary evidence the court fixed the resumption of the sixty-day period at 27th January 2014.

p. 4

Legal principles established

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  • Where an appellant applies in writing for a copy of the proceedings within thirty days of the decision and serves the application on the respondent, the sixty-day period for lodging the record of appeal under rule 82(1) is suspended for the time certified by the registrar as required for preparation and delivery of the copy
  • The sixty-day clock resumes running only when the appellant is notified that the typed proceedings are ready for collection, as evidenced by the certificate of delay issued by the registrar

Court orders

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  1. 1.The respondent's application dated 28th March 2014 seeking to strike out the appeal is dismissed
  2. 2.The appellant's application dated 20th June 2014 for enlargement of time is dismissed as unnecessary
  3. 3.Each party shall bear its own costs with respect to each application

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159
  • Court of Appeal RulesRule 75(1) and (2)
  • Court of Appeal RulesRule 82(1), its proviso, and 82(2)
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 53

Cases cited (1)

  • Felister Wakonyo Wamahiu vs. Joseph Wachira Mwangi
    [2014] eKLR
On appeal from
Environment and Land Court of Kenya at Eldoret
E & L Case No. 411 'B' of 2012 (Formerly HCCC No. 20 of 2008)
Jurisdiction invoked
Court of Appeal Rules (applications under rules 4, 53 and 82 of the Court of Appeal Rules; jurisdiction over a competent appeal from the Environment and Land Court)

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, "Grace Jelei Boit v Sammy Some Kosgei [2015] KECA 569 (KLR)", Case Analysis (2015). Civil Appeal No. 33 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/569/eng@2015-06-24

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