Lebo & 331 others & 331 others v Kenya Power & Lighting Limited (Civil Appeal (Application) E033 of 2023) [2024] KECA 1518 (KLR)
The bottom line
#Kenya's Court of Appeal refused to strike out an appeal, holding that time spent preparing proceedings—confirmed by a certificate of delay—doesn't count against appeal filing deadlines.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondents' appeal ought to be struck out for having been filed out of time and for the omission of the decree from the record of appeal
Key legal issues
#Computation of the 60-day period for filing a record of appeal where certified proceedings were sought
Where an application for typed proceedings is made and a certificate of delay issued, the time taken to prepare the proceedings is excluded; time starts running when the proceedings are certified ready, and the appeal was filed within the prescribed time.
Rule 84 provides that the documents for computing or excluding time are the application for a copy of the proceedings and the registrar's certificate. The Court adopted its own precedents (Michael Mwalo, Mombasa Water Products, Kenya Ports Authority) holding that certified preparation time is excluded. Since proceedings were certified ready on 23rd March 2023 and the record was filed on 23rd May 2023, the filing was within time. The applicant's argument that no certificate was needed because proceedings were ready within 60 days was rejected.
Omission of the decree from the record of appeal
An incomplete record renders an appeal defective, but the Court declined to strike out the appeal because the respondents had filed an application to have their supplementary record of appeal deemed duly filed, which remained uncanvassed and whose fate the Court would not predetermine.
The applicant contended that the absence of a certified decree rendered the appeal incompetent, relying on Bwana Mohamed Bwana. However, Rule 90 permits an appellant to include an omitted document in a supplementary record of appeal within fifteen days, or thereafter with leave. The respondents' application dated 25th March 2024 seeking to deem the supplementary record filed was pending and undecided; striking out the appeal would pre-empt that application.
Legal principles established
#- The time certified in a certificate of delay for preparing proceedings is excluded in computing the 60-day period for instituting an appeal, and time starts running only when the proceedings are certified ready.
- A certificate of delay is prima facie evidence of the time the court took to prepare and deliver proceedings and will be relied upon unless cogent reasons are shown to challenge it.
- An appeal from which requisite documents are omitted is incompetent, but a court will not strike out an appeal where the appellant may yet be permitted to file a supplementary record of appeal.
- Timelines in the Court of Appeal Rules are indispensable and command obedience.
Court orders
#- 1.The application dated 22nd June 2023 seeking to strike out the respondents' appeal is rejected
- 2.Each party will bear its own costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Superior court (trial court, not further identified)
- Jurisdiction invoked
- Rules 86(b) and 89(1)(h) of the Court of Appeal Rules, 2022 (interlocutory application; not a further appeal)
Relief refused
#Striking out of the respondents' appeal
The appeal was filed within time once the certificate of delay period is excluded, and it would be wrong to predetermine the fate of the pending application to file a supplementary record of appeal incorporating the decree
Costs of the application awarded to the applicant
Although the application failed, it prompted the respondents to remedy the incomplete record
Costs
Each party will bear its own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
we find that the time for filing the record started running on 23rd March 2023 when the proceedings were certified ready; and the appeal herein was filed within the prescribed time.
A certificate of delay is prima facie evidence that the court took the period it relates to prepare and deliver the proceedings. A certificate of delay has always been relied upon unless salient and cogent reasons are set out to challenge it.
Without a record of appeal, a Court cannot determine the appeal cause before it. Thus, if the requisite bundle of documents is omitted, the appeal is incompetent and defective, for failing the requirements of the law.
As regards costs, we order that each party will bear its own costs. We so order because although the application has failed, it has awoken the respondent to the need to seek to remedy an otherwise incomplete record of appeal.
Issues in the judgment
#The judgment does not state the case title, appeal number or neutral citation of the matter, and the parties are referred to only as 'the applicant' and 'the respondents'; the names of the litigants cannot be ascertained from the text.
The quotation of Rule 90 in the judgment is visibly garbled, interpolating the numbered sub-rule structure mid-sentence and omitting the opening words of the rule.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kinyanjui v Joreth Limited & 2 others (Enviromental and Land Originating Summons 1189 of 2014) [2025] KEELC 3332 (KLR)[2025] KEELC 3332 (KLR)24 Apr 2025
Cite this brief
#Cite this brief
Caselaw, "Lebo & 331 others & 331 others v Kenya Power & Lighting Limited (Civil Appeal (Application) E033 of 2023) [2024] KECA 1518 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1518/eng@2024-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.