Kenya Bureau of Standards v Centurion Engineers & Builders Ltd
The bottom line
#Kenya's Court of Appeal confirmed that if you don't file your appeal record on time, your notice of appeal is automatically treated as withdrawn.
What this practically means
#Executive summary
#Key legal issues
#Effect of default in instituting an appeal under Rule 83 of the Court of Appeal Rules
Rule 83 operates mandatorily: failure to institute an appeal within the appointed time results in the notice of appeal being deemed withdrawn, and the court may so order on its own motion or on application.
The court set out the text of Rule 83 and held it prescribes the legal penalties for failure to institute an appeal within the appointed time, and is couched in mandatory terms. It endorsed the description of the rule as a practical mechanism to rid the registry of speculative notices of appeal filed in knee-jerk reaction or in holding mode. Because the respondent's conditional leave to file the Record of Appeal within 30 days had lapsed and no record had been filed, the rule was squarely engaged.
Whether the respondent's explanation for the delay justified relief from the lapsed conditional order
The explanation was rejected; the certificate of delay showed the proceedings were only applied for on 23rd November 2018, long after the ruling of 9th December 2016, evidencing inaction inconsistent with diligent pursuit of the appeal.
The court scrutinised the certificate of delay as the official document attesting to when proceedings were requested and supplied. It showed the respondent did not apply for proceedings after the ruling was delivered in December 2016, only doing so when the 30-day window was running. Counsel's piecemeal steps were characterised as feeble and indicative of indifference by a party operating under a stringent conditional order that had lapsed. No Record of Appeal had been filed.
Whether the overriding objective (Sections 3A and 3B of the Appellate Jurisdiction Act and Article 159(d) of the Constitution) could rescue the respondent
No; the overriding objective does not debunk settled rules of procedure and cannot be invoked to aid an indolent litigant who has not justified non-compliance with the Rules and an express court order.
The respondent invoked the overriding objective and Article 159(d) in support of extension of time. The court reiterated that the principle does not displace well-settled procedural rules that ensure uniform standards and predictability in the administration of justice. It also noted the extension application appeared to be a belated reaction to the Rule 83 motion, since the respondent knew by 17th January 2019 that proceedings were ready.
Legal principles established
#- Rule 83 is couched in mandatory terms: a party who lodges a notice of appeal and fails to institute an appeal within the appointed time is deemed to have withdrawn it, and the court may make such order on its own motion or on application by any party, with the party in default liable for costs.
- A party who fails to comply with a conditional order granting time-bound leave to appeal bears the consequences of the lapse unless it demonstrates a plausible and satisfactory explanation for the delay; the overriding objective cannot aid an indolent litigant who has not justified non-compliance with the Rules and an express court order.
Court orders
#- 1.The application dated 1st March, 2019 is allowed
- 2.The notice of appeal dated 22nd December, 2016 is deemed as withdrawn
- 3.Costs of the application to the applicant
- On appeal from
- High Court
- HCCC No. 506 of 2012
- Jurisdiction invoked
- Rule 83 of the Court of Appeal Rules; the ruling also notes a pending application by the respondent under Rule 4 of the Court of Appeal Rules seeking extension of time
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Bureau of Standards v Centurion Engineers & Builders Ltd", Case Analysis (2019). Civil Application No. 65 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/47/eng@2019-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.