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Court of AppealAllowedNairobi Milimani H.C.C. No. 4640 of 1988 (appeal therefrom; motion dated 26th March 2015)· [2016] KECA 231 (KLR)

Eastlands Theatre Limited, James Samuel Kinyanjui & Anne Njeri Kinyanjui v Kenya National Capital Corporation Limited (Civil Application 84 of 2015) (Civ) [2016] KECA 231 (KLR)

Court of Appeal of Kenya
14 October 2016
1,368 words in judgment
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The bottom line

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Kenya's Court of Appeal excused a nearly seven-year appeal delay, blaming the High Court registry and holding the Registrar—not the appellant—responsible for a defective certificate of delay.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi (P.O. Kiage, JA) on a motion dated 26th March 2015 brought under Rule 4 of the Court of Appeal Rules seeking extension of time to file and serve a record of appeal against the judgment of the High Court of Nairobi (M.K. Koome, J) dated 30th October 2009 in H.C.C. No. 4640 of 1988. The applicants filed a notice of appeal timeously and promptly requested proceedings, but the High Court took over five years to make them ready, and the first certificate of delay was defective; a compliant one issued only on 16th February 2015, after the time for lodging the record had expired. The respondent opposed, blaming the applicants for the defective certificate (which, it said, was drafted by the advocate in practice) and contending the delay was inordinate and that the applicants could have filed the record without the certificate or regularised later. The court declined to hold the delay inordinate or blamable, noting the lengthy delay attributable to the High Court registry and holding that the Rules place responsibility for the certificate of delay on the Registrar, following Paul Wanyonyi v Silver Star Parcels Ltd and Daniel Nganga Kanyi v Sosphinaf Company Ltd. Prejudice to the respondent was lessened by a consent securing the decretal sum. The application was allowed, with the record of appeal to be filed and served within thirty days, and costs in the intended appeal.

Key legal issues

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01

Whether the delay in filing the record of appeal was inordinate and attributable to the applicants

Holding

The delay was not inordinate nor blamable on the applicants, given that the High Court took over five years to prepare proceedings despite reminders, and further delay flowed from a defective certificate of delay later corrected.

Reasoning

The court noted the notice of appeal was filed timeously and proceedings were requested promptly. The High Court took more than five years to notify the parties that proceedings were ready, which the court criticised as inefficient. The further delay arose from the defective certificate of delay, responsibility for which lies with the Registrar under the Rules. The applicants' conduct was not slothful or indifferent, so the delay was excused.

p. 3
02

Responsibility for a defective certificate of delay

Holding

The Registrar of the court below bears responsibility for the certificate of delay, including its defects; a suggestion that defects should be attributed to the applicant's advocate was rejected.

Reasoning

The respondent argued that by practice the certificate is drafted by the advocate and thus its defects were the applicants' fault. The court held that the Rules place the onus of preparation on the Registrar, who signs and issues the document, and followed prior decisions of the Court of Appeal placing responsibility on the Registrar.

p. 3
03

Prejudice to the respondent if extension is granted

Holding

Any prejudice to the respondent was greatly lessened because the decretal sum had been secured by a consent filed between the parties.

Reasoning

In assessing prejudice alongside the chances of the intended appeal, the court accepted the applicants' advocate's sworn statement that a consent securing the decretal sum had been filed. Keeping the litigation open through an appeal therefore caused little prejudice, and imposing narrow timeliness would only conduce to a speedier conclusion.

p. 3

Legal principles established

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  • Responsibility for the preparation, signing and contents of the certificate of delay rests on the Registrar of the court below, not on the appellant's advocate.
  • The discretion to extend time under Rule 4 is wide and unfettered, exercised to do justice between parties on the peculiar facts of each case, having regard among other things to the length of and explanation for the delay and the prejudice to the respondent.

Court orders

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  1. 1.Time is extended for the applicants to file and serve the record of appeal
  2. 2.The applicants shall file and serve the record of appeal within thirty (30) days of the date of the ruling
  3. 3.Costs shall be in the intended appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 82

Cases cited (5)

  • PAUL WANYONYI vs. SILVER STAR PARCELS LTD
    [2010] eKLR
  • DANIEL NGANGA KANYI vs. SOSPHINAF COMPANY LTD & ANOR
    [2005] eKLR
  • MWANGI vs. KENYA AIRWAYS
    [2003] KLR 486
  • MURAI vs. WAINAINA (No. 4)
    [1982] KLR 38
  • KENYA RAILWAYS CORPORATION vs. QUICKLUBES EA LTD
    [2015] eKLR
On appeal from
High Court of Kenya at Nairobi (Milimani)
H.C.C. No. 4640 of 1988
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Eastlands Theatre Limited, James Samuel Kinyanjui & Anne Njeri Kinyanjui v Kenya National Capital Corporation Limited (Civil Application 84 of 2015)  (Civ) [2016] KECA 231 (KLR)", Case Analysis (2016). Nairobi Milimani H.C.C. No. 4640 of 1988 (appeal therefrom; motion dated 26th March 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/231/eng@2016-10-14

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