Telkom Kenya Limited v Ngokonyo & 2 others (Civil Appeal (Application) 394 of 2017) [2024] KECA 164 (KLR)
The bottom line
#Kenya's Court of Appeal ruled an appeal is only late if filed more than 60 days after the complete court record is ready—not partial proceedings.
What this practically means
#Executive summary
#Key legal issues
#What constitutes complete/necessary proceedings for the record of appeal
The proceedings subject of the earlier judgment of Hayanga, J. were necessary proceedings; the record of appeal could not be complete without them.
The respondents argued the pre-2008 proceedings were irrelevant to the appeal. The Court held relevance was for the bench hearing the appeal, but as a threshold matter a trial court's record must include the entire proceedings, even those preceding a partial decision. The later-obtained proceedings were therefore necessary, and the Deputy Registrar's certificate of delay, spanning the whole preparation period, was not faultable.
Whether the appellant's request for the missing proceedings was made in reaction to the striking out application
It was not. The appellant's advocates wrote to the Deputy Registrar on 17th August 2017, before service of the striking out motion, seeking directions; the respondents, though copied, did not deny receipt and the explanation was not debunked.
The respondents contended the appellant woke from 'a long slumber' only after being served with Civil Application No. 210 of 2017. The Court accepted the sworn, unrebutted evidence of Noelle C. Lubano that her firm pursued the missing proceedings from May 2017, culminating in the 17th August 2017 letter copied to the respondents' advocates. The letter's omission of the stated purpose did not discredit the explanation.
Timeliness of the record of appeal
Time ran from 13th October 2017, when the complete proceedings were ready, and the record filed on 25th November 2017 was within the 60-day period.
The certificate of delay indicated the High Court took from 14th January 2014 to 13th October 2017 (1,332 days) to prepare and supply certified copies of the proceedings, including the later-obtained ones. Counting 60 days from 13th October 2017, the record filed in late November 2017 was filed on time, so the striking out application failed.
Legal principles established
#- A record of proceedings before the trial court is not complete unless the entire proceedings before that court, including those preceding an earlier partial decision, are on record; such proceedings are 'necessary proceedings' for computing the time for filing the record of appeal.
- Where a certificate of delay covers the entire period taken by the lower court to prepare and supply certified copies of the necessary proceedings, time for filing the record of appeal runs from the date the complete proceedings were made available, not from partial proceedings.
Court orders
#- 1.The Notice of Motion dated 6th December 2017 seeking striking out of the Notice of Appeal, Memorandum of Appeal and record of appeal is dismissed
- 2.Costs of the application awarded to the appellant
- On appeal from
- High Court of Kenya
- NRB HCCC No. 357 of 1992
- Jurisdiction invoked
- Inherent/appellate jurisdiction of the Court of Appeal under the Court of Appeal Rules (Rules 83, 84, 87(1) and (2)) on an application to strike out a notice of appeal and record of appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Telkom Kenya Limited v Ngokonyo & 2 others (Civil Appeal (Application) 394 of 2017) [2024] KECA 164 (KLR)", Case Analysis (2024). Civil Application No. Nai. (not stated in full in judgment; respondents' motion was Civil Application No. 210 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/164/eng@2024-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.