Kenya Commercial Finance Company Limited v Mulji Lalji Pindolia [1997] KECA 356 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a six-year-stale notice of appeal, ruling that applying for court proceedings is not enough—you must actively chase them.
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 respondent's notice of appeal should be struck out under rule 80 of the Court of Appeal Rules
- 2.Whether the respondent applied in good time for copies of the proceedings in accordance with rule 81 of the Rules
- 3.Whether the respondent exercised due diligence in pursuing the intended appeal given the six-year delay
Key legal issues
#Scope of rule 80 applications to strike out a notice of appeal
Rule 80 permits striking out a notice of appeal on the grounds that no appeal lies or that an essential step in the proceedings has not been taken or taken within the prescribed time.
The court set out the text of rule 80, under which the applicant moved. Mr Havelock argued the applicant could rely only on the grounds in the rule itself. The court accepted the respondent had a right of appeal and had complied with rule 81 by applying for proceedings in time, but found the essential step of diligently obtaining the proceedings and filing the appeal had not been taken within a reasonable time.
Duty of diligence in obtaining proceedings after applying under rule 81
Compliance with rule 81 by applying for copies of the proceedings is not enough; the intending appellant must diligently pursue their preparation and delivery, and six years of unexplained delay is inordinate and prejudicial.
The respondent wrote two letters in July and August 1991 requesting proceedings but thereafter wrote no reminders and made no personal enquiries. The court held it does not normally take six years for the Registry to prepare copies, that such delay prejudices the successful party who is deprived of the fruits of judgment, and that the respondent failed to show due diligence or that the High Court's failure was the cause.
Legal principles established
#- A party intending to appeal must not merely apply for copies of the proceedings and then wait; it is their duty to expeditiously obtain the copies and diligently follow up, and inordinate unexplained delay will cause prejudice justifying striking out the notice of appeal.
- The burden lies on the intending appellant to show that despite due diligence the court failed to provide the proceedings, so that the failure to file the appeal is not their fault.
Court orders
#- 1.The respondent's notice of appeal filed on 17 July 1991 is struck out
- 2.Costs of the notice of motion awarded to the applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 131 of 1985
- Jurisdiction invoked
- Rule 80 and rule 1(3) 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.
It is not enough for him to apply for the said copies of the proceedings, and then sit back and wait until the court makes them available.
There is a certain limit upto when a successful party can be expected to wait and be deprived of the immediate fruits of the judgment in his favour.
For these reasons exercising our powers under rule 1(3) of the Rules we hereby strike out the respondent's notice of appeal filed on 17 July 1991. We would award costs of the notice of motion to the applicant.
Issues in the judgment
#The motion is dated 30 June 1997 but the supporting affidavit was sworn on 1 July 1997, after the motion date; the court treated the affidavit's defects as a mere irregularity.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Commercial Finance Company Limited v Mulji Lalji Pindolia [1997] KECA 356 (KLR)", Case Analysis (1997). Civil Application No. NAI.178 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/356/eng@1997-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.