East African Road Services v Nyanjui [1985] KECA 4 (KLR)
The bottom line
#Kenya's Court of Appeal let an appeal proceed despite missed deadlines, because the court registry's own delay—not the appellant—caused most of the problem.
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 delay in sealing the decree interfered with the applicant's compliance with the Court's rules
- 2.Whether the delay in sealing the decree could be certified by a certificate of delay
- 3.Whether a document omitted from the record of appeal can be included in a supplementary record
- 4.Whether time should be extended under rule 4 despite counsel's misapprehension of the rules
Key legal issues
#Effect of registry delay in sealing the decree
The registry's delay in sealing the decree from May 27 to July 15, 1985 interfered with the applicant's compliance with the rules, excusing counsel's initial misapprehension.
Although the intending appellant should have drawn up the decree earlier, there were still 37 days after May 27 within the 60-day period, which was ample time. The registry took 49 days to seal a task that takes half an hour. The court held that such delay hampered the applicant to an effective degree and justified extension of time notwithstanding counsel's initial mistakes.
Scope of the certificate of delay
A certificate of delay covers only the time taken to obtain copies of the proceedings; the time taken to seal a decree is not certifiable.
On the plain reading of the proviso to rule 8(a), the certificate of delay concerns the time taken to obtain a copy of the proceedings to be copied. A decree is not part of the proceedings to be copied; it is an original document made after the copies of the proceedings are delivered. The registry could not therefore be faulted for declining to certify the delay in sealing the decree.
Supplementary record of appeal
Rule 85(2A) allows any document required by rule 85(1) which was omitted from the record to be filed in a supplementary record, except the judgment or order specified in rule 85(1)(g).
The applicant could have filed the record of appeal in time without the sealed decree and later filed a supplementary record. The court noted that the applicant's counsel did not have this clearly in mind, engaging in what the judge called a quixotic battle against the registry, though this alternative route was correctly identified by the respondent.
Exercise of discretion under rule 4
The discretion under rule 4 is free; where the delay is short and the reason acceptable, merits and prejudice are of secondary importance.
Relying on Gatti v Shoosmith and Palata Investments, the first consideration is the reason for the delay. Where the delay is short and the excuse acceptable, the appellant should not be deprived of the right of appeal, and no question of merits arises so long as the court has the general picture of the appeal. Merits and prejudice usually play a part only in more extreme cases, which this was not.
Legal principles established
#- As a general rule an appellant should not be deprived of his right of appeal where the delay is short and the excuse acceptable, and merits do not arise where the court has the general picture of the appeal.
- Delay in the registry in sealing a decree interferes with the appellant's compliance with the rules of the Court.
- A certificate of delay concerns only the time taken to obtain a copy of the proceedings; a decree is an original document to be made after the copies of the proceedings are delivered.
Court orders
#- 1.Application allowed
- 2.Applicant to file and serve the record of appeal on or before August 20, 1985
- 3.Leave to apply in case of difficulty with complying with the court's order
- 4.Notice to the parties of their right to refer this matter to the full court
- 5.Ruling to be supplied to both parties
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court
- Civil Case No 2887 of 1981
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules
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.
as a general rule the appellant should not be deprived of his right of appeal, and no question of the merits would arise, so long as the court has the general picture of what the appeal is about
The discretion under rule 4 is free and I am quite clear that this is a case where the misapprehensions of counsel should be excused, and the party granted his right of appeal.
In my opinion the registry's delay interfered with the appellant's compliance with the rules of this court, even though the appellant's counsel was initially wrong.
the application is allowed, and it was agreed that in that event, the costs should be the respondents' costs in any event. The applicant will file and serve the records of appeal on or before August 20, 1985.
Issues in the judgment
#The judgment records the decree as submitted to the Registrar until July 27, 1985, but elsewhere states the Registrar sealed it on July 15, 1985, an apparent date inconsistency.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "East African Road Services v Nyanjui [1985] KECA 4 (KLR)", Case Analysis (1985). Civil Application No NAI 62 of 1985. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/4/eng@1985-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.