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Court of AppealDismissedCivil Application No. Nai. 260 of 1999

JOEL MUTHUI KYAMBU vs UNITED FINANCE LIMITED [1999] KECA 121 (KLR)

Court of Appeal
7 December 1999
359 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~1 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that a delay in filing an appeal caused by the High Court itself does not invalidate the appeal.

What this practically means

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Executive summary

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This was an interlocutory application before the Court of Appeal at Nairobi under rule 80 of the Court of Appeal Rules, brought by Joel Muthui Kyambu, acting in person, seeking to strike out a Notice of Appeal lodged by United Finance Limited on 9th October, 1998 on the ground that the appeal had not been filed within the time prescribed by the Rules. The applicant also sought to set aside stay orders pending appeal granted by the High Court on 20th November, 1998. The intended appeal was from a judgment of the High Court of Kenya at Nairobi (Pall, J.) dated 8th September, 1991 in H.C.C.C. No. 3782 of 1991. Counsel for the respondent filed a comprehensive replying affidavit detailing the steps taken towards lodging the appeal, which had been registered as C.A. No. 252 of 1999. The court, comprising Gicheru, Kwach and Tunoi, JJ.A., in a single ruling of the whole bench, was satisfied that the respondent had fully complied with the rules relating to filing an appeal. It found that the superior court had delayed in supplying the necessary papers, and that the Certificate of Delay dated 11th November, 1999 fully explained the position. The respondent was held not guilty of laches and to have acted diligently throughout. The application was dismissed with costs. Expressing sympathy for the applicant, whose pursuit of justice dated back to 1991, the court directed that appeal C.A. No. 252 of 1999 be heard on a priority basis. No authorities were cited in the ruling.

Questions the Court framed

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

  1. 1.Whether the Notice of Appeal should be struck out on the ground that the respondent did not file the appeal within the time prescribed by the Rules
  2. 2.Whether the orders for stay pending appeal granted by the superior court on 20th November, 1998 should be set aside

Key legal issues

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01

Whether an appeal is out of time where the delay in lodging it is attributable to the superior court's delay in supplying the necessary papers

Holding

The appeal was lodged within time; the respondent was not guilty of laches and the Certificate of Delay fully explained the position.

Reasoning

The court examined counsel's replying affidavit detailing the steps taken towards lodging the appeal, which was registered as C.A. No. 252 of 1999. It found full compliance with the rules relating to filing an appeal. The superior court's delay in supplying the necessary papers, evidenced by the Certificate of Delay dated 11th November, 1999, accounted for the elapsed time, so the notice of appeal could not be struck out.

p. 2

Legal principles established

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  • A party who acts diligently in lodging an appeal, and whose delay is attributable to the superior court's delay in supplying the necessary papers as evidenced by a Certificate of Delay, is not guilty of laches and the appeal is deemed filed within the parameters of the rules.

Court orders

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  1. 1.The applicant's application to strike out the Notice of Appeal is dismissed with costs
  2. 2.Appeal C.A. No. 252 of 1999 to be heard on a priority basis

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 3782 of 1991
Jurisdiction invoked
Rule 80 of the Court of Appeal Rules (application for striking out a Notice of Appeal)

Relief refused

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Striking out of the Notice of Appeal lodged on 9th October, 1998

The respondent complied with the rules on filing an appeal; the delay was attributable to the superior court's delay in supplying the necessary papers, as explained by the Certificate of Delay

p. 2

Setting aside of the stay pending appeal granted by the superior court on 20th November, 1998

The application, which included this prayer, failed and was dismissed in its entirety

p. 2

Costs

The application was dismissed with costs (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.

We are satisfied that the respondent has fully complied with the rules relating to filing an appeal.
p. 2Compliance with filing rules
We are satisfied that the respondent has not been guilty of laches and has all the way acted diligently in seeing that the appeal was lodged within the parameters of the rules.
p. 2Diligence and laches
This application fails and is accordingly dismissed with costs. However, we are not without sympathy for the applicant whose attempts to seek justice dates back to 1991. We shall order that the appeal C.A. 252 of 1999 be heard on a priority basis.
p. 2Disposition and priority hearing

Issues in the judgment

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minor

The judgment refers to a Certificate of Delay dated 11th November, 1999, while the application itself was lodged in 1998 and the stay orders were granted on 20th November, 1998; the 1999 date may be a typographical error for 1998, but the judgment does not resolve it.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "JOEL MUTHUI KYAMBU vs UNITED FINANCE LIMITED [1999] KECA 121 (KLR)", Case Analysis (1999). Civil Application No. Nai. 260 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/121/eng@1999-12-07

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