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Court of AppealPartially AllowedCivil Appeal (Application) 168 of 2019· [2022] KECA 1071 (KLR)

County Government of Uasin Gishu & 3 others v Zedka Technical Services Ltd

Court of Appeal
7 October 2022
PKP. O. KiageMNMumbi NgugiFTF. Tuiyott
1,665 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal struck out a county government's appeal because the record was filed late and a last-minute certificate of delay could not save it.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal (Kiage, Ngugi and Tuiyott, JJA) on a motion by Zedka Technical Services Ltd seeking to strike out the notice of appeal filed on 15th May 2019 and the record of appeal filed on 7th August 2019 by the County Government of Uasin Gishu and three others, appealing a High Court ruling (Githinji, J.) of 15th May 2019 in H.C.C.C. No. 9 of 2016. The applicant argued that the record was filed outside the 60-day period under Rule 82(1) of the Court of Appeal Rules, 2010, that the default was fatal under Rule 83, and that it could not be cured by Article 159(2)(d) of the Constitution or sections 3A and 3B of the Appellate Jurisdiction Act, citing Patrick Kiruja Kithinji v Victor Mugira Marete. The appellants relied on a certificate of delay indicating the court used 15th May to 10th July 2019 to prepare proceedings, and urged that the appeal was a public interest matter. The court noted the motion cited the wrong rule (striking out falls under Rule 84, now Rule 86 of the 2022 Rules) but found it timely, having been lodged within 30 days of service of the record on 2nd September 2019. Since the proceedings were ready and collected on 10th July 2019 yet the record was filed almost a month later with no explanation, and the certificate of delay was issued on 31st May 2022, nearly three years later, and appeared to be an afterthought, the court struck out the record of appeal with costs to the applicant. This ruling binds subordinate courts and the High Court on the computation of time under Rule 82(1) and the treatment of late-issued certificates of delay.

Key legal issues

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01

Whether the record of appeal filed on 7th August 2019 was out of time under Rule 82(1)

Holding

Yes. The proceedings were ready and collected on 10th July 2019, yet the record was lodged on 7th August 2019, almost a month later, with no explanation; the late-issued certificate of delay could not cure this.

Reasoning

Rule 82(1) requires lodging of the record within 60 days, excluding time certified for preparation of proceedings. The appellant admitted the proceedings were ready and collected on 10th July 2019 but gave no reason for filing the record on 7th August 2019. The certificate of delay issued on 31st May 2022, almost three years later, was incomprehensible and appeared to be an afterthought, so it could not exclude the preparation period.

p. 3
02

Whether the striking-out application was competent and timely

Holding

Yes. Although the motion cited the wrong rule (5(2)(b)), striking out falls under Rule 84 (now 86), and the application was lodged within 30 days of service of the record of appeal on 2nd September 2019.

Reasoning

The court noted the motion was ostensibly brought under Rule 5(2)(b) but that striking out is governed by Rule 84 (now Rule 86 of the 2022 Rules), cautioning counsel to invoke correct provisions. On timeliness, service of the record occurred on 2nd September 2019 and the motion was lodged on 24th September 2019, within the 30-day window in the proviso to Rule 84.

p. 3

Legal principles established

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  • An application to strike out a notice of appeal or record of appeal must be brought under Rule 84 of the Court of Appeal Rules 2010 (now Rule 86 of the 2022 Rules), and counsel must invoke the correct provisions.
  • An application to strike out must be brought within 30 days of service of the notice of appeal or record of appeal.
  • A certificate of delay only excludes the preparation period where proceedings were requested in writing within 30 days of the decision, and it cannot assist a party who files the record long after the proceedings were ready and collected.

Court orders

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  1. 1.The notice of motion dated 24th September 2019 granted
  2. 2.The record of appeal filed on 7th August 2019 struck out
  3. 3.The applicant awarded the costs of the motion

Authorities

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Legislation

  • Court of Appeal Rules, 2010Rule 5(2)(b)
  • Court of Appeal Rules, 2010Rule 82(1)
  • Court of Appeal Rules, 2010Rule 83
  • Court of Appeal Rules, 2010Rule 84
  • Court of Appeal Rules, 2022Rule 86
  • Court of Appeal Rules, 2022Rule 84(1)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 50
  • Appellate Jurisdiction Actsections 3A and 3B

Cases cited (2)

  • Patrick Kiruja Kithinji vs. Victor Mugira Marete
    [2015] eKLR

    That an appeal filed out of time is not curable under Article 159 of the Constitution nor sections 3A and 3B of the Appellate Jurisdiction Act

  • Andrew Kiplagat Chemaringo vs. Paul Kipkorir Kibet
    [2018] eKLR

    Discretion to extend time where extension causes no prejudice and delay is not inordinate

On appeal from
High Court of Kenya at Eldoret
H.C.C.C. No. 9 of 2016
Jurisdiction invoked
Rule 84 (now Rule 86) of the Court of Appeal Rules, invoked by the applicant to strike out the notice and record of appeal

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, "County Government of Uasin Gishu & 3 others v Zedka Technical Services Ltd", Case Analysis (2022). Civil Appeal (Application) 168 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1071/eng@2022-10-07

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