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Court of AppealDismissedNot stated in the judgment

Abdulrehman (Sued as the Attorney of the Wakf of the Late Harith Al-Amin Bin Mazrui) v Canarian Holdings Limited (Civil Appeal (Application) E104 of 2024) [2025] KECA 911 (KLR)

Court of Appeal of Kenya
23 May 2025
2,118 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that an unchallenged Certificate of Delay protects a late appeal from being struck out.

What this practically means

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Executive summary

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Before the Court of Appeal at Mombasa was an application by Canarian Holdings Limited seeking to strike out the Memorandum and Record of Appeal filed by Mohamed Said Abdulrehman on 28th May 2024 on the ground that it was lodged outside the mandatory 60-day period under rule 84(1) of the Court of Appeal Rules, 2022. The applicant contended that the certified proceedings had been ready by 17th October 2023, so the Certificate of Delay dated 9th May 2024, which computed the preparation period as running from 4th April 2022 to 28th March 2024, was a facade, leaving a 219-day delay in lodging the appeal. The respondent countered that the delay was occasioned by the time the superior court took to type the proceedings, that the unchallenged Certificate of Delay explained the delay, and that striking out pleadings is a draconian measure. The court framed a single issue: whether the Memorandum and Record of Appeal should be struck out. It held that a Certificate of Delay is prima facie evidence of the period taken to prepare and deliver proceedings; that the applicant was not impugning the Certificate's authenticity but only the respondent's diligence; that nothing stopped the superior court from communicating readiness earlier; and that the respondent filed the Record of Appeal within 19 days of the 60-day window after receiving the Certificate. Applying its prior decisions in Daniel Nganga Kanyi and Keibukwo Investments, the court dismissed the application with costs to the respondent, leaving the appeal to proceed on the merits. The judgment was delivered on 23rd May 2025 by a bench of three Judges of Appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Memorandum and Record of Appeal dated 23rd May 2024 and filed on 28th May 2024 should be struck out for having been lodged outside the mandatory 60-day period

Key legal issues

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01

Whether an unchallenged Certificate of Delay can be disregarded on the basis that the proceedings were allegedly ready earlier

Holding

The court accepted the Certificate of Delay as a true reflection of the period taken to prepare the proceedings and declined to strike out the appeal, holding that absent formal challenge to or evidence contradicting the Certificate, its computation must be accepted.

Reasoning

The applicant conceded it was not impugning the authenticity of the Certificate of Delay and only faulted the respondent for not following up on the proceedings. The court reasoned that if the proceedings had been ready earlier, the superior court would have communicated this to the respondent's counsel, who had requested proceedings as early as 1st April 2022. The respondent filed the Record of Appeal on 28th May 2024, within 19 days of the 60-day window after receiving the Certificate on 9th May 2024.

p. 4
02

The evidential status of a Certificate of Delay under the proviso to rule 84(1) of the Court of Appeal Rules, 2022

Holding

A Certificate of Delay constitutes prima facie evidence of the period taken to prepare and deliver proceedings from the trial court for purposes of computing the 60-day period for instituting an appeal.

Reasoning

The court traced the origin of the Certificate of Delay to the proviso to rule 84(1), which excludes from the computation of time such period as the registrar certifies as having been required for the preparation and delivery of copies of the proceedings to the appellant. It endorsed prior authority that the certificate confirms when delivery of the copies was made, and that is all the Rule requires.

p. 4

Legal principles established

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  • A Certificate of Delay is prima facie evidence of the period it took to prepare and deliver proceedings, and where it is not challenged, the court is bound to accept the period stated therein as the true reflection of the time taken to prepare the proceedings.
  • Under the proviso to rule 84(1) of the Court of Appeal Rules, 2022, the time certified by the registrar as required for preparation and delivery of proceedings is excluded in computing the 60-day period for instituting an appeal.

Court orders

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  1. 1.The Notice of Motion dated 25th June 2024 is dismissed
  2. 2.Costs of the application are awarded to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
Jurisdiction invoked
Rule 84(1) of the Court of Appeal Rules, 2022 and the Court's power to strike out incompetent appeals

Relief refused

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Striking out of the Memorandum and Record of Appeal dated 23rd May 2024 and filed on 28th May 2024

The Record of Appeal was filed within 60 days of receipt of the Certificate of Delay, and the applicant did not impugn the authenticity of the Certificate of Delay

p. 4

Costs of the application and the appeal awarded to the applicant

The application was dismissed with costs to the respondent

p. 4

Costs

The Notice of Motion dated 25th June 2024 is dismissed with costs to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

A Certificate of Delay is therefore prima facie evidence of the period it took to prepare and deliver the proceedings.
p. 4Evidential status of a Certificate of Delay
Without any evidence to the contrary that the Record of Appeal ought to have been filed earlier than the period stated in the Certificate of Delay, we are bound to accept the period of delay computed and stated in the Certificate of Delay to be from 4th April 2022 to 28th March 2024 as the true refiection of the time taken to prepare the proceedings in the trial court.
p. 4Binding effect of an unchallenged Certificate of Delay
It follows that the Notice of Motion dated 25th June 2024 is unmeritorious and is hereby dismissed with costs to the respondent.
p. 4Final orders

Issues in the judgment

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minor

The judgment gives inconsistent dates for the Certificate of Delay: it is described as dated 9th March 2024 in the applicant's affidavit and as dated 9th May 2024 in the respondent's affidavit and in the court's own reasoning.

minor

The judgment states the Notice of Appeal was served on 8th April 2024 although it is dated 1st April 2022, an apparent internal inconsistency in the chronology.

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, "Abdulrehman (Sued as the Attorney of the Wakf of the Late Harith Al-Amin Bin Mazrui) v Canarian Holdings Limited (Civil Appeal (Application) E104 of 2024) [2025] KECA 911 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/911/eng@2025-05-23

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