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Court of AppealAllowedCivil Appeal (Nairobi)· [2021] KECA 171 (KLR)

Bonventure Tours & Travel Limited v Kiplagat & Bundotich & 8 others (Civil Appeal 244 of 2016) [2021] KECA 171 (KLR)

Court of Appeal
19 November 2021
1,538 words in judgment
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The bottom line

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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

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Executive summary

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The appellant, plaintiff in Environment and Land Case No. 79 of 2007, appealed against a ruling of Gitumbi, J. delivered on 20th December 2013 declaring the suit abated or, alternatively, dismissing it for want of prosecution on an application by the 5th respondent. The High Court had found there was no evidence of service of summons to enter appearance issued on 7th June 2007, contrary to order 5 rule 1(5) of the Civil Procedure Rules. Before the Court of Appeal, the 5th respondent sought striking out of the appeal under rule 84 as filed out of time. The Court dismissed that application, holding that time began to run only when the certificate of delay was signed on 27th September 2016 and collected on 28th September 2016, so the record filed on 9th November 2016 was within time. On the merits, the Court found no factual basis for the finding of non-service: substituted service by newspaper advertisement had been effected with leave, and the trial judge failed to consider the appellant's replying affidavit. The alleged admission of non-service was not borne out by the record. Applying Mbogo v Shah, the Court held the judge misdirected herself; applying D. T. Dobie, the suit should not have been struck out since efforts to prosecute it were demonstrable. The appeal was allowed, the impugned ruling set aside, the High Court suit reinstated to hearing on its merits with a hope of priority, and each party ordered to bear its own costs of the appeal.

Key legal issues

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01

Timeliness of the record of appeal

Holding

The appeal was filed in time because time began to run when the certificate of delay was collected

Reasoning

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.

p. 3
02

Service of summons to enter appearance

Holding

The trial judge misdirected herself in finding there was no service, ignoring the appellant's replying affidavit and evidence of substituted service

Reasoning

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.

p. 3
03

Alleged admission that summons were not issued or served

Holding

No admission existed on the record

Reasoning

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.

p. 3
04

Dismissal for want of prosecution

Holding

Dismissal was unwarranted as the appellant had taken steps to prosecute the suit

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The 5th respondent's application to strike out the notice of appeal and the appeal is dismissed
  2. 2.The appeal is allowed and the ruling of Gitumbi, J. delivered on 20th December 2013 is set aside
  3. 3.The High Court matter (ELC No. 79 of 2007) is reinstated to hearing on its merits
  4. 4.Each party shall bear its own costs of the appeal

Authorities

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Legislation

  • Civil Procedure Rules (Order 5)rule 1(5)
  • Court of Appeal Rulesrule 84

Cases cited (2)

  • Mbogo v Shah & Another
    [1968] EA 93
  • D. T. Dobie & Co. (Kenya) Ltd v Muchina
    [1982] KLR 1
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

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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, "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.