Bonventure Tours & Travel Limited v Kiplagat & Bundotich & 8 others (Civil Appeal 244 of 2016) [2021] KECA 171 (KLR)
The bottom line
#Kenya's Court of Appeal revived a land case struck out by the High Court, ruling that appeal deadlines run only after a certificate of delay is collected.
What this practically means
#Executive summary
#Key legal issues
#Timeliness of the record of appeal
The appeal was filed in time because time began to run when the certificate of delay was collected
The Court computed time from collection of the certificate of delay on 28th September 2016, giving the appellant until 28th November 2016 to file the record of appeal; filing on 9th November 2016 was therefore within time, and the rule 84 striking-out application failed.
Service of summons to enter appearance
The trial judge misdirected herself in finding there was no service, ignoring the appellant's replying affidavit and evidence of substituted service
The appellant had effected substituted service by newspaper advertisement with leave of court, and the replying affidavit set out service on the 6th, 7th and 8th respondents. The judge failed to consider this material, amounting to a misdirection justifying appellate interference under Mbogo v Shah.
Alleged admission that summons were not issued or served
No admission existed on the record
Although the learned judge stated the appellant had made an admission that summons were neither issued nor served, the appellant denied this and the Court's own perusal of the record revealed no such admission, undermining a key basis of the ruling below.
Dismissal for want of prosecution
Dismissal was unwarranted as the appellant had taken steps to prosecute the suit
Though the suit had been in court for nearly seven years, the appellant had set down its application dated 3rd May 2013 for hearing on 16th May 2013 before the 5th respondent's application was filed. Applying D. T. Dobie & Co. (Kenya) Ltd v Muchina, this was not a plain and obvious case for striking out.
Legal principles established
#- Time for filing an appeal begins to run only when certified proceedings and the certificate of delay are ready and collected
- An appellate court will not interfere with a trial court's exercise of discretion unless the decision is clearly wrong due to misdirection or failure to consider relevant matters
- A suit should not be struck out for want of prosecution where efforts have been made to prosecute it; the power is exercised only in plain and obvious cases
Court orders
#- 1.The 5th respondent's application to strike out the notice of appeal and the appeal is dismissed
- 2.The appeal is allowed and the ruling of Gitumbi, J. delivered on 20th December 2013 is set aside
- 3.The High Court matter (ELC No. 79 of 2007) is reinstated to hearing on its merits
- 4.Each party shall bear its own costs of the appeal
- On appeal from
- High Court of Kenya
- Environment and Land Case No. 79 of 2007 (ruling thereon)
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules (appellate jurisdiction; rule 84 invoked on striking-out application)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bonventure Tours & Travel Limited v Kiplagat & Bundotich & 8 others (Civil Appeal 244 of 2016) [2021] KECA 171 (KLR)", Case Analysis (2021). Civil Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/171/eng@2021-11-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.