Francis Gakuu Gachaga & 2 Others v Elijah Nderitu Gachaga

2. The applicants have now moved this Court by way of a notice of motion dated 17th August, 2022, predicated upon Rules 86 and 44 of the Court of Appeal Rules, Sections 75 and 76 of the Civil Procedure Act. They seek to have the respondent’s appeal struck out for having been filed out of time. The grounds in support of the application are on the face of the motion as well as in the supporting affidavit sworn by the 1st applicant on the same date. The applicants urge that; the respondent’s appeal was filed on 2 nd August, 2022, a period of two years and nine months after delivery of the impugned ruling on 14th November, 2019; the respondent has not lodged an application before this Court seeking extension of time to file his appeal; that the respondent did not obtain a certificate of delay prior to filing the appeal; that the notice of appeal was not signed by the Registrar of the Superior Court; that the respondent’s record of appeal does not include part of the applicants’ submissions before the Superior Court; and, that the appeal is incompetent and bad in law. 3. In response to the application, the respondent filed a relying Page 2 of 6

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affidavit dated 8th February, 2023. He averred that after the impugned ruling was delivered by the superior court, his Page 3 of 6

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advocates orally applied for orders for leave to appeal, stay of execution, as well as a copy of the typed proceedings and impugned ruling. He contended that the applicants did not oppose his application for leave to appeal before the superior court, and cannot therefore raise that issue in this application. The respondent deponed that he filed a notice of appeal together with a letter bespeaking the typed proceedings. That on 6th June, 2022, his advocate was informed that the proceedings were ready for collection. He was issued with a certificate of delay on 16 th August, 2022. He asserted that his record of appeal was filed on 2nd August, 2022, which was within sixty (60) days of the notification that the typed proceedings were ready for collection. He urged that any documents alleged to have been omitted in his record of appeal can be duly filed in a supplementary record of appeal. 4. The application was canvassed by written submissions. In their submissions, the applicants reiterated the averments outlined in the supporting affidavit. The applicants urged that Rule 84(1) of the Rules of this Court dictate that the record of appeal should be filed within sixty days of lodging the notice of appeal. He submitted that the respondent’s Page 4 of 6

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notice of appeal having been lodged on 26 th November, 2019, the sixty days period Page 5 of 6

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expired on 26th January, 2020. They averred that it was imperative for the respondent to seek extension of time to file his appeal under Rule 4 of the Rules of this Court, which he failed to do. They asserted that the respondent also failed to obtain leave before the superior court to lodge his appeal, having in mind that the impugned ruling was based on a successful preliminary objection on a point of law, raised by the applicants. They submitted that the superior court directed the respondent to file a formal application seeking leave to appeal which he failed to do. They further asserted that the certificate of delay was obtained by the respondent after filing his record of appeal. For those reasons, the applicants invited us to allow the application and strike out the respondent’s appeal. 5. The respondent, in rebuttal, submitted that the provisions of the Civil Procedure Act sought to be relied on by the applicants were not applicable before this Court. He reiterated that his record of appeal was filed within sixty (60) days of receiving the notification that the typed proceedings were ready for collection, which was dated 6th June, 2022. He urged that the time taken to prepare and supply the typed proceedings ought to be excluded in computation of time. He further reiterated that the applicants, having not opposed his oral application before the superior court seeking leave to Page 6 of 6

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appeal the impugned ruling, Page 7 of 6

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cannot challenge the issuance of the said leave before this Court. He urged us to dismiss the application for lack of merit. 6. We have considered the application, the rival submissions and the law. Rule 84(1) of the Court of Appeal Rules provides that an appeal must be filed within sixty days of the lodging of the notice of appeal, The only exception being when the appellant has applied and not been supplied with the certified copies of the proceedings within the period. The proviso of Rule 84(1) states thus: “Provided that where an application for a copy of the proceedings in the superior court has been made in accordance with sub-rule (2) within thirty days, after the date of the decision against which it is desired to appeal, there shall, in computing the time within which the appeal is to be instituted, be excluded such time as may be certified by the registrar of the superior court as having been required for the preparation and delivery to the appellant of such copy.” 7. Rule 84(2) states the appellant will not be entitle to rely on the above proviso if he did not copy the letter bespeaking of the proceedings to the respondent. 8. In the present confronted application, Page 8 of 6 when the respondent was

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with the application to strike out his appeal, he stated that he orally made the application to be supplied with the proceedings Page 9 of 6

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before the High Court after it had rendered the impugned Ruling. That may have been the case. However, for the respondent to benefit from the proviso of Rule 84(1) of the Rules of this Court, he was required to copy the letter bespeaking the proceedings to the respondents in the appeal (in this case the applicants). That was not done. 9. In the circumstances therefore, we find the application to be meritorious. The record of appeal filed in Court on 2 nd August 2022 was filed out of time without the leave of the Court. It is hereby struck out with costs to the applicants. Dated and delivered at Nyeri this 25 th day of September, 2026. W. KARANJA ......................... .. JUDGE OF APPEAL L. KIMARU ........................ JUDGE OF APPEAL A.O. MUCHELULE ......................... JUDGE OF APPEAL I certify that this is a true copy of original. Signed Page 10 of 6

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DEPUTY REGISTRAR. Page 11 of 6

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