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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Application No. 65 of 2019· [2019] KECA 47 (KLR)

Kenya Bureau of Standards v Centurion Engineers & Builders Ltd

Court of Appeal
20 December 2019
2,290 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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Appeal confirmed that if you don't file your appeal record on time, your notice of appeal is automatically treated as withdrawn.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

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Executive summary

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This was an application under Rule 83 of the Court of Appeal Rules by the Kenya Bureau of Standards seeking a declaration that leave granted to Centurion Engineers and Builders Ltd to appeal had lapsed for failure to file a Record of Appeal within 30 days as directed in the Court's conditional ruling of 23rd November 2018 (Makhandia, Murgor & Odek, JJ.A). The leave had been granted in respect of a High Court decision (Tuiyott, J.) delivered on 9th December 2016 in HCCC No. 506 of 2012. Centurion did not file a replying affidavit but relied on written submissions and had itself lodged an application under Rule 4 for extension of time, blaming the High Court registry for delays in supplying proceedings, and citing counsel's illness. The applicant relied on Rule 83 and the Quicklubes decision, arguing the overriding objective cannot aid an indolent litigant. In a single unanimous ruling of the bench (Ouko, P., Nambuye and Koome, JJ.A), the court held Rule 83 is couched in mandatory terms and prescribes the legal consequences of failing to institute an appeal within the appointed time. Scrutinising the certificate of delay, it found the respondent had applied for proceedings only on 23rd November 2018, long after the ruling, and that counsel's piecemeal, lacklustre steps evidenced indifference. The explanation of circumstances beyond the respondent's control was rejected, and the extension-of-time application was refused. The court allowed the application and deemed the notice of appeal dated 22nd December 2016 as withdrawn, with costs to the applicant.

Key legal issues

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01

Effect of default in instituting an appeal under Rule 83 of the Court of Appeal Rules

Holding

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.

Reasoning

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.

p. 2
02

Whether the respondent's explanation for the delay justified relief from the lapsed conditional order

Holding

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.

Reasoning

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.

p. 3
03

Whether the overriding objective (Sections 3A and 3B of the Appellate Jurisdiction Act and Article 159(d) of the Constitution) could rescue the respondent

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The application dated 1st March, 2019 is allowed
  2. 2.The notice of appeal dated 22nd December, 2016 is deemed as withdrawn
  3. 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

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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, "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.