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Court of AppealDismissedCivil Application No. 121 of 2019· [2020] KECA 553 (KLR)

Siokwet Tarita Limited v Kisii University & 2 others [2020] KECA 553 (KLR)

Court of Appeal
10 July 2020
1,199 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that when a party requests appeal court proceedings on time, delays by the court itself cannot be used to strike out their appeal.

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, 2010 by Siokwet Tarita Limited seeking to strike out a notice of appeal filed by Kisii University and two others against a judgment of the Environment and Land Court at Eldoret (Ombwayo, J.) delivered on 26th July, 2017. The applicant, whose land lease and rent arrears were the subject of the petition, argued that the respondents had obtained a stay of proceedings, lost interest in the appeal by failing to file it for over two years, and thereby violated the applicant's right of access to justice while a chargee threatened to exercise statutory power of sale over L.R. Eldoret Municipality/Block/7/162. The respondents countered that the notice of appeal was filed and served on time and that proceedings were timeously bespoken. The court found there was no dispute that the notice of appeal complied with rules 75 and 77 and that proceedings had been requested within thirty days, activating the proviso to rule 82 which excludes from computation the time taken by the registrar to prepare proceedings. Applying Mariamu Abubakar Ireri v National Cereals & Produce Board as cited in Kuguru Food Complex v Mashreq Bank, the court held that time stopped running upon bespeaking proceedings and that the delay was attributable to the trial court, not the respondents. The alternative prayer to review the stay of proceedings was refused for want of jurisdiction, there being no notice of appeal against those orders. The motion was dismissed with costs to the respondents.

Key legal issues

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01

Whether a notice of appeal should be struck out under rule 83 where proceedings have not been filed due to the trial court's delay

Holding

The application fails because the respondents complied with rules 75, 77 and 82: the notice of appeal was filed and served in time and proceedings were bespoken within 30 days, excluding time from running; the delay lies with the trial court

Reasoning

The court found no dispute that the notice of appeal was filed and served within the timelines required by rules 75 and 77. A letter dated 3rd August, 2017 requested proceedings and was copied to the applicant's advocates. Under the proviso to rule 82, time therefore stopped running. The respondents had written follow-up letters to the trial court, and it was that court's duty to furnish proceedings. Accordingly there was no inaction by the respondents justifying striking out under rule 83.

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02

Whether the Court of Appeal may review a stay of proceedings issued by the trial court on an interlocutory application without a cross-appeal

Holding

No; such a prayer is unavailable in this Court absent a notice of appeal against the stay orders

Reasoning

The applicant sought, in the alternative, a variation of the stay of proceedings granted by the Environment and Land Court. The court held it could not entertain that prayer because no appeal had been lodged against the orders granting the stay. The proper forum for review of those orders is the trial court itself, which the applicant was free to approach.

p. 2

Legal principles established

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  • Once a party timeously applies for a copy of the proceedings and copies the letter bespeaking proceedings to the other side's counsel, time for instituting the appeal is excluded under the proviso to rule 82 until delivery of the proceedings by the registrar
  • Delay in furnishing proceedings for an appeal is attributable to the trial court, not to an appellant who has timeously requested them
  • The Court of Appeal cannot review or vary orders of a superior court where no notice of appeal has been filed against those orders

Court orders

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  1. 1.The Notice of Motion dated and filed by the applicant was dismissed with costs to the respondents

Authorities

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Legislation

  • Court of Appeal Rules, 2010Rule 83
  • Court of Appeal Rules, 2010Rule 82
  • Court of Appeal Rules, 2010Rule 75
  • Court of Appeal Rules, 2010Rule 77
  • Appellate Jurisdiction ActSection 3A
  • Appellate Jurisdiction ActSection 3B
  • Constitution of Kenya, 2010Article 100
  • Constitution of Kenya, 2010Article 48
  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 159

Cases cited (2)

  • Mariamu Abubakar Ireri & Anor v National Cereals & Produce Board
    Civil Application No. 92 of 2008 (ur)
  • Kuguru Food Complex Limited v Mashreq Bank Limited
    [2016] eKLR
On appeal from
Environment and Land Court at Eldoret
ELC Petition No. 18 of 2016
Jurisdiction invoked
Rule 83 of the Court of Appeal Rules, 2010; Sections 3A and 3B of the Appellate Jurisdiction Act; Articles 100, 48 and 50(1) of the Constitution

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, "Siokwet Tarita Limited v Kisii University & 2 others [2020] KECA 553 (KLR)", Case Analysis (2020). Civil Application No. 121 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/553/eng@2020-07-10

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