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Court of AppealPartially AllowedCivil Appeal (Application) 116 of 2019· [2022] KECA 989 (KLR)

Sea Angel Service Station v Abdul

Court of Appeal
23 September 2022
1,384 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal struck out an appeal record because the appellant never proved it served its request for court proceedings on the other side, voiding its Certificate of Delay.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Mombasa (Murgor, Nyamweya and Lessit, JJA) on the Respondent's Notice of Motion dated 27th September 2019 seeking to strike out the Appellant's Record of Appeal filed in the appeal against the ruling of the High Court (P.J. Otieno J.) in MSA HC Civil Appeal No. 108 of 2013. The Respondent argued that the record was filed out of time without leave, that it rested on an irregular Certificate of Delay because the request for proceedings was never served on him as required by Rule 82(2) of the Court of Appeal Rules, 2010, and that two notices of appeal had been lodged, suggesting mischief. The Appellant attributed the duplicate notices to a clerical error in the date of delivery of the judgment, later corrected by the High Court, and urged that defects be cured by amendment rather than by striking out the record. The court first held the striking-out application was competently filed within the thirty days allowed by the proviso to Rule 84. It then held that the duplicate notices were adequately explained and not fatal, designating the notice lodged on 17th May 2017, within fourteen days of the 3rd May 2017 judgment, as the valid notice. However, the Appellant produced no evidence of service of the request for proceedings on the Respondent within the required timelines, so it could not rely on the Certificate of Delay. The Record of Appeal was therefore out of time and was struck out, with costs to the Respondent. The application succeeded in full; the underlying High Court ruling was not disturbed.

Key legal issues

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01

Timeliness of the application to strike out

Holding

The application was competently filed, having been lodged within thirty days of service of the Record of Appeal on 30th August 2019.

Reasoning

The proviso to Rule 84 of the Court of Appeal Rules, 2010 requires a striking-out application to be brought within thirty days of service of the notice of appeal or record of appeal. Service occurred on 30th August 2019 and the motion was lodged on 30th September 2019, exactly within the window, so the threshold requirement was met.

p. 2
02

Two notices of appeal

Holding

The duplication was adequately explained by a clerical error in the date of delivery of the judgment and was not fatal; the notice lodged on 17th May 2017, within fourteen days of the 3rd May 2017 judgment, is the valid notice.

Reasoning

The High Court had corrected the judgment's date of delivery, explaining the second notice. Since two notices cannot subsist for one appeal, the court identified the timely first notice as valid, and the record of appeal and its filing timelines attach to that notice.

p. 2
03

Reliance on the Certificate of Delay and timeliness of the Record of Appeal

Holding

Without evidence of service of the request for proceedings on the Respondent within the required timelines, the Certificate of Delay could not be relied on; the Record of Appeal filed on 26th August 2019 was out of time and was struck out.

Reasoning

Rule 82(2) mandatorily required the written request for proceedings to be served on the respondent within thirty days of the decision. The Appellant produced no evidence of such service and did not explain the omission, so the certified extension of time under the proviso was unavailable and the record, filed beyond sixty days, was incompetent.

p. 3

Legal principles established

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  • An appellant cannot rely on a Certificate of Delay under the proviso to Rule 82(1) unless the application for a copy of proceedings was in writing and served on the respondent within thirty days of the decision, as required by Rule 82(2).
  • There cannot be two notices of appeal in respect of the same appeal; the notice lodged within fourteen days of the decision is the valid one.
  • An application to strike out a notice of appeal or record of appeal under Rule 84 must be brought within thirty days of service of the notice of appeal or record of appeal.

Court orders

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  1. 1.The Record of Appeal lodged on 26th August 2017 is struck out
  2. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 42
  • Court of Appeal Rules, 2010Rule 82
  • Court of Appeal Rules, 2010Rule 82(1) proviso
  • Court of Appeal Rules, 2010Rule 82(2)
  • Court of Appeal Rules, 2010Rule 84
  • Court of Appeal Rules, 2022Rule 84
On appeal from
High Court at Mombasa
MSA HC Civil Appeal No. 108 of 2013
Jurisdiction invoked
Rules 42 and 84 of the Court of Appeal Rules, 2010 (application to strike out a Record of Appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Sea Angel Service Station v Abdul", Case Analysis (2022). Civil Appeal (Application) 116 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/989/eng@2022-09-23

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