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

of this Court’s Rules, 2010. The applicant added that failure to le the appeal within the prescribed timelines is fatal and cannot be cured by an application under Article 159(2)(d) of the Constitution. 3. The grounds of the application are further re-stated in a supporting adavit sworn by Martin Chemonges, learned counsel for the applicant. 4. In response and opposition to the motion, Julius Rotich, the appellant’s Chief Ocer for Roads, Transport, Energy and Public Works, swore a replying adavit on 6th June, 2022 in which he deposed that despite the applicant ling the motion on 24th September 2019, the same was never served on the appellant until 30th May, 2022 after directions had been given by this Court. In eect, their right to be heard pursuant to Article 50 of the Constitution had been infringed. The appellant further revealed that upon its request, typed and certied proceedings of the matter at the High Court were ready on 10th July 2019, and it picked them the same day. It was averred that pursuant to Rule 82(1), and the certicate of delay issued indicating that the court utilised the period between 15th May 2019 and 10th July 2019 to prepare the proceedings, that period should be excluded when computing time. In eect it was urged, the appeal was led within the stipulated time frame. 5 At the hearing of the motion, learned counsel for the applicant Ms. Jeruto, holding brief for Mr. Luseria, and her learned counterpart, Mr. Ngarngar holding brief for Ms Boinett, for the appellant, relied on the led adavits and submissions. 6 Ms. Jeruto added that the applicant was served with the record of appeal on 2nd September 2019, a claim which Mr. Ngarngar conrmed. She contended that the certicate of delay presented was an afterthought as the record of appeal had been led much earlier without the certicate of delay. In the led written submissions, the applicant reiterates that the appellant having lodged its notice of appeal on 15th May 2019, time for ling the record of appeal started to run then, and therefore the record of appeal led on 7th August 2019 was led out of time. The applicant further maintained that an appeal led out of time is not curable under Article 159 of the Constitution, nor is it curable under sections 3A and 3B of the Appellate Jurisdiction Act, citing this Court’s decision in Patrick Kiruja Kithinji vs. Victor Mugira Marete [2015] eKLR. 7 On his part, Mr. Ngarngar conceded that the record of appeal had been led 28 days late, but insisted that in view of the certicate of delay indicating that a period of about 55 days was utilised by the court to prepare proceedings, the record was led within time. Counsel further conceded that the certicate of delay was dated 2 years after the ling of the record. He argued that this Court has discretion to extend time for ling an appeal where such extension would not cause prejudice to the counter party and where the delay was not inordinate, relying on the holding in Andrew Kiplagat Chemaringo vs. Paul Kipkorir Kibet [2018] eKLR. Moreover, counsel asserted, the delay in ling the record of appeal was not inordinate and the appeal was a public interest matter concerning the county government hence it ought not to be struck out. 8 We have carefully considered the application before us, the rival adavits and submissions, the Rules of this Court and the law. Our attention is rstly drawn to the wrong provisions of the law under which the application was supposedly made. An application for striking out is required to be made under Rule 84 of the Court of Appeal Rules, 2010 now Rule 86 of the new Court of Appeal Rules, 2022. Counsel need to be keen to ensure that the correct provisions of law are invoked. 9 There is no dispute that by dint of Rule 82(1) of our former Rules, now Rule 84(1), a person who has led a notice of appeal is required to institute the appeal by lodging within 60 days; “ (a) a memorandum of appeal in four copies; https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1071/eng@2022-10-07 2

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(b) the record of appeal in four copies; (c) the prescribed fee; and (d) security for costs of the appeal.” 10. The proviso to the sub-rule is to the eect that such time as may be certied by the registrar of the court appealed from as having been required for the preparation and delivery of a copy of the proceedings shall be excluded in the computation of time, provided that such copy was requested in writing within 30 days of the impugned decision, and the request copied to the deponent. 11 Where there is default in taking an essential step in the proceedings, a person aected by an appeal may apply under Rule 84 (now 86) of the Rules to strike out the notice or the appeal itself, if already instituted. It is under this Rule that the applicant has moved us, asserting, which is common ground, that the respondent failed to take the essential step of instituting the appeal by lodging the record of appeal within the time prescribed. 12 The Rule itself has a proviso that an application to strike out a notice of appeal or an appeal “shall not be brought after the expiry of thirty days from the date of service of the notice of appeal or record of appeal as the case may be.” 13 It is common ground that the applicant was served with the record of appeal on 2nd September 2019, and the application was lodged on 24th September 2019. We are therefore satised that the application before us is within the 30-day timelines in the Rule. 14 The applicant’s contention is that the appellant having led a notice of appeal on 15th May 2019, the lodging of the record of appeal on 7th August 2019 was outside the stipulated 60 days’ period. It is further asserted that the certicate of delay issued on 31st May, 2022 does not aid the appellant’s situation as it was furnished way after the record of appeal had been led. The appellant resists the application claiming that the delay in ling the record was occasioned by the delay in providing the typed and certied proceedings by the court. The appellant relies on the submitted certicate of delay, holding that when the period used to prepare proceedings, that is 15th May 2019 to 10th July 2019 is excluded from computation of the 60 days, then the record should be deemed to have been led in time. 15 We note that by the appellant’s own admission in the replying adavit sworn on 6th June 2022 by Julius Rotich, its Chief Ocer for Roads, Transport, Energy and Public Works, and as disclosed in its submissions, the typed and certied proceedings were ready for collection on 10th July 2019, and indeed the appellant collected them that very day. No reason was given to explain why the appellant then decided to lodge the record of appeal on 7th August 2019, a period of almost one month later. Besides, we nd the certicate of delay that the appellant seeks to rely on un helpful, for the reason that it is incomprehensible why a certicate of delay for proceedings that were ready and collected on 10th July 2019, would be issued on 31st May 2022, almost 3 years later. Seemingly, there is some truth in the applicant’s submission that the certicate was obtained as an afterthought. 16 In the result, we do not nd the appellant to have provided a sucient answer to the notice of motion. We accordingly grant the same and strike out the record of appeal with costs as prayed. The applicant shall have the costs of the motion. DATED AND DELIVERED AT KISUMU THIS 7TH DAY OF OCTOBER, 2022. P. O. KIAGE ........................... https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1071/eng@2022-10-07 3

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JUDGE OF APPEAL MUMBI NGUGI ........................... JUDGE OF APPEAL F. TUIYOTT ........................... JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1071/eng@2022-10-07 4

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