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Court of AppealDismissedCivil Application E051 of 2021· [2022] KECA 523 (KLR)

Mombasa Water Products Limited v Nic Bank Limited & 2 others

Court of Appeal
6 May 2022
SKS. Gatembu KairuPNP. NyamweyaJLJ. Lesiit
2,318 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to kill a bank's stalled appeal because the company attacking it couldn't prove its delay certificate was genuine.

What this practically means

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Executive summary

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Mombasa Water Products Limited, the applicant, moved the Court of Appeal under Rules 82 and 83 of the Court of Appeal Rules, 2010 seeking an order deeming as withdrawn the Notice of Appeal filed by Nic Bank Limited against the High Court judgment of P.J. Otieno J delivered on 23rd April 2020 in HCCA No. 149 of 2019. The applicant argued that the 1st respondent had failed to lodge a record of appeal within the mandatory 60 days, relying on a certificate of delay indicating the typed proceedings were ready by 5th May 2020, and that the respondents were improperly enjoying stay of execution anchored on a stalled appeal. The 1st respondent countered that it had timely requested typed proceedings, that the certificate of delay was of doubtful authenticity - a position corroborated by the Deputy Registrar's advice that no payment had been received for it - and that registry delays should not be visited upon it. The Court, in a single judgment delivered by S. Gatembu Kairu, P. Nyamweya and J. Lesiit JJA, applied its earlier decision in Mae Properties Limited v Joseph Kibe, accepting that Rule 83 confers a discretion to deem a notice withdrawn once the appointed time lapses, but holding that the discretion is predicated on circumstances supporting the deeming. Given the disputed authenticity of the certificate of delay and the absence of evidence explaining how the applicant obtained it, the Court declined to exercise its discretion and dismissed the application with costs to the 1st respondent.

Key legal issues

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01

Scope of the Rule 83 deeming provision

Holding

The Court has discretion to deem a notice of appeal withdrawn under Rule 83, but only where circumstances justify the deeming; disputed facts defeat the application.

Reasoning

Following Mae Properties, the Court accepted that Rule 83 operates mandatorily once the appointed time lapses, but held that the discretion is conditioned on the existence of circumstances from which withdrawal can be deemed. Where the certificate of delay underpinning the time computation is disputed and unexplained, the Court cannot exercise the discretion in favour of the applicant.

p. 4
02

Burden of proof regarding the certificate of delay

Holding

The party relying on a certificate of delay must prove its authenticity and explain how it was obtained.

Reasoning

The Applicant annexed a certificate of delay indicating proceedings were ready on 5th May 2020, but the 1st Respondent disputed it and the Deputy Registrar disowned it. The Court found the Applicant had not shown the certificate was availed by the Deputy Registrar nor explained the circumstances of its possession, so legitimate authenticity concerns remained unresolved.

p. 4

Legal principles established

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  • The Court's discretion under Rule 83 to deem a notice of appeal withdrawn is predicated on circumstances supporting the deeming; where there are circumstances to the contrary, the Court cannot so deem.
  • Under Rule 82, time for instituting an appeal is excluded only where an application for proceedings has been made and a certificate of delay has been issued by the Registrar.

Court orders

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  1. 1.The Applicant's Notice of Motion application dated 6th July 2021 is dismissed
  2. 2.Costs of the application to the 1st respondent

Authorities

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Legislation

  • Court of Appeal Rules, 2010Rule 82
  • Court of Appeal Rules, 2010Rule 83

Cases cited (2)

  • Mae Properties Limited vs Joseph Kibe & Another
    [2017] eKLR

    The Court's inherent power under Rule 83 to deem a notice of appeal withdrawn; the deeming sets in when the appointed time lapses.

  • Maithya Lonzi vs Paul Mutuku & Kyama Paul Mutuku
    [1984] eKLR

    The High Court is duty bound to inform an applicant that certified copies of proceedings are ready.

On appeal from
High Court at Mombasa
HCCA No. 149 of 2019
Jurisdiction invoked
Rules 82 and 83 of the Court of Appeal Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mombasa Water Products Limited v Nic Bank Limited & 2 others", Case Analysis (2022). Civil Application E051 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/523/eng@2022-05-06

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