Rupa Cotton Mills (Epz) Ltd v Bank of Baroda (K) Ltd [2016] KECA 445 (KLR)
The bottom line
#Kenya's Court of Appeal refused to strike out a bank's appeal, holding that a duly signed certificate of delay governs filing deadlines unless clearly disproved.
What this practically means
#Executive summary
#Key legal issues
#Validity of the certificate of delay
The certificate of delay issued by the Deputy Registrar on 30th January 2013 was valid and binding for computing time, as it was duly signed and the material challenging it (an unsigned handwritten note and an unexplained receipt) was unreliable.
The court found contested facts it could not resolve on affidavit evidence. In the authorities relied on by the applicant there was a letter from the Deputy Registrar notifying counsel that proceedings were ready; here there was none. A duly signed certificate of delay required by the Court of Appeal Rules could not be defeated by a handwritten note bearing no signature, court stamp or insignia, and a receipt that did not indicate what services were paid for.
Whether the Record of Appeal was filed within time
Computing time with the exclusion certified in the certificate of delay, the Record of Appeal filed on 1st February 2013 was filed within the prescribed period, hence the strike-out application failed.
It was common ground that the Notice of Appeal, its service, and the letter bespeaking proceedings were all within time. The only question was the Record of Appeal. Since the certificate of delay excluded the registry's preparation time, the 60-day period ran from delivery of the proceedings and judgment, and the record filed on 1st February 2013 fell within it.
Standard for striking out an appeal
An appeal can only be struck out in very clear circumstances because striking out may deny a deserving party access to justice, a fundamental right under the Constitution.
The court invoked the right to a hearing as the cornerstone of the rule of law, citing Richard Ncharpi Leiyagu v IEBC, to decline to strike out the appeal where the applicant had not clearly demonstrated that the record was filed out of time.
Legal principles established
#- Under the proviso to Rule 82(1) of the Court of Appeal Rules, time spent by the registrar of the superior court in preparing and delivering copies of proceedings is excluded in computing the time within which an appeal must be instituted, and such time is evidenced by a certificate of delay duly signed by the Deputy Registrar.
- A certificate of delay cannot be impeached by informal, unsigned and unstamped documents; in the absence of a letter from the registrar of the superior court showing the proceedings were ready for collection, the certificate of delay governs the computation of time.
- An appeal will only be struck out in very clear circumstances, since striking out may deny a deserving party the fundamental right of access to justice.
Court orders
#- 1.The notice of motion dated 11th February 2013 is dismissed for lacking in merits
- 2.Costs of the application to the respondent
- On appeal from
- High Court of Kenya at Nairobi
- Winding Up Cause No. 40 of 2011
- Jurisdiction invoked
- Court of Appeal Rules, principally Rule 84 (application to strike out a Record of Appeal), the appeal arising under Rule 82(1) and (2)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rupa Cotton Mills (Epz) Ltd v Bank of Baroda (K) Ltd [2016] KECA 445 (KLR)", Case Analysis (2016). Civil Appeal (Application) No. NAI 22 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/445/eng@2016-06-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.