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Court of AppealDismissedNot stated in judgment (application dated October 21, 2021)· [2024] KECA 1497 (KLR)

Shengli Engineering Construction Group Limited . Appellant v Clement Muturi Kigano

Court of Appeal of Kenya
25 October 2024
1,096 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 confirmed that filing an appeal by court email when the e-filing system is down counts as filing on time.

What this practically means

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Executive summary

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The Court of Appeal (Gatembu Kairu, Ole Kantai and Gachoka, JJA) delivered a single unanimous judgment on 25th October 2024 dismissing an application by Clement Muturi Kigano, the respondent in the appeal, seeking under Rule 84 of the Court of Appeal Rules to strike out the appellant's appeal as incompetent for having been instituted out of time. The appeal challenged a High Court judgment of Sergon, J of 24th September 2020 awarding the applicant general damages of Kshs.8,000,000.00 and special damages of Kshs.2,030,534.00 for injuries sustained in a road traffic accident on 8th March 2011. The Notice of Appeal was lodged on 30th September 2020; the request for typed proceedings was conceded to be within time, and the certificate of delay excluded the period from 30th September 2020 to 15th July 2021. The court computed the remaining 55 days as running from 16th July 2021 to 8th September 2021. Because the Judiciary e-filing system was inaccessible from 31st August 2021 and the Deputy Registrar on 6th September 2021 granted leave to file through the official court email address, the transmission of the Memorandum and Record of Appeal on that date was held to be filing within time. The appellant also raised a preliminary objection that the application itself was out of time under Rule 86, which the court found unnecessary to consider. The application was dismissed with costs to the appellant.

Key legal issues

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01

Computation of the sixty-day period for instituting an appeal under Rule 84(1)

Holding

The sixty days run from the date the notice of appeal was lodged, excluding days consumed before the letter requesting proceedings and the entire certified preparation period; the remaining days ran from the day after the certified period ended.

Reasoning

The Notice of Appeal was lodged on 30th September 2020, five days after judgment, leaving 55 days. The certified period (30th September 2020 to 15th July 2021) is excluded by the proviso to Rule 84 since the request for proceedings was made within thirty days. The 55 remaining days therefore ran from 16th July 2021, expiring on 8th September 2021.

p. 2
02

Effect of e-filing system downtime and directions permitting filing by court email

Holding

Transmission of the Memorandum and Record of Appeal to the official court email address on 6th September 2021, pursuant to the Deputy Registrar's direction given in view of the e-filing challenges, was filing within time.

Reasoning

There was evidence of diligent attempts to access the e-filing platform from 31st August 2021, all unsuccessful. The Deputy Registrar then granted leave to forward documents to the official court email address, on condition they be uploaded once the system resumed. The appellant transmitted the documents by email on 6th September 2021 and complied with the upload condition on 17th September 2021. The court treated the email transmission as timely filing.

p. 2
03

Preliminary objection that the striking-out application was filed outside 30 days under Rule 86

Holding

The court declined to determine the preliminary objection since it was satisfied the appeal was filed within time, rendering the objection unnecessary to consider.

Reasoning

Having concluded that the appeal was instituted within the time prescribed by Rule 84, the substratum of the striking-out application failed. The court expressly stated it was unnecessary to consider the preliminary objection on Rule 86, so no finding was made on that objection.

p. 3

Legal principles established

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  • Under Rule 84(1) of the Court of Appeal Rules an appeal must be instituted within sixty days after the date when the notice of appeal was lodged, excluding time certified by the registrar as required for preparation and delivery of proceedings, where the request for proceedings was made within thirty days of the decision.
  • Filing effected through the official court email address at the direction of the Deputy Registrar during downtime of the e-filing system constitutes filing within time under Rule 84.

Court orders

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  1. 1.The application dated October 29, 2021 is dismissed
  2. 2.Costs of the application to the appellant
On appeal from
High Court at Nairobi
Jurisdiction invoked
Rule 84 of the Court of Appeal Rules (inherent appellate jurisdiction over competency 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, "Shengli Engineering Construction Group Limited . Appellant v Clement Muturi Kigano", Case Analysis (2024). Not stated in judgment (application dated October 21, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1497/eng@2024-10-25

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