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Court of AppealDismissedNot stated in the judgment (application following striking out of Civil Appeal No. 154 of 1998)

ARTHUR KANAI KAMAU & ANOTHER vs CAROLINE NJERI MWICIGI [1999] KECA 170 (KLR)

Court of Appeal of Kenya
1 November 1999
552 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to extend appeal filing time, holding that time starts when copies are ready for collection, not certified copies.

What this practically means

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Executive summary

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This was a single-judge application under rule 4 of the Court of Appeal Rules for extension of time to file a notice of appeal and record of appeal, filed on 27 May 1999 within a week of Civil Appeal No. 154 of 1998 being struck out on 20 May 1999. The applicants, through Mr. Kamonde, argued that their advocate had miscalculated the date from which time commenced to run, relying on paragraph 8 of the Certificate of Delay, which recorded that preparation and delivery of certified copies of the proceedings and judgment took until 19 June 1998. Lakha JA held that paragraph 6 of the Certificate showed the proceedings and judgment were ready for collection on 20 May 1998, and that this was the date time commenced to run, making 19 July 1999 the last day for filing the appeal. Rule 81, under which the Certificate is issued, concerns copies rather than certified copies, and Rule 85 does not require certification; thus paragraph 8 addressed a different category of documents. Applying the principle that where two clauses of a document are repugnant, the first prevails, paragraph 6 prevailed over paragraph 8. Counsel conceded there was no ambiguity or misinterpretation of the Rules, only simple human error. The court found no material basis for exercising the wide rule 4 discretion and dismissed the application with costs on 1 November 1999 at Nairobi.

Questions the Court framed

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

  1. 1.Whether time for filing the appeal commenced to run on 20 May 1998 (when copies were ready for collection) or on 19 June 1998 (per paragraph 8 of the Certificate of Delay)
  2. 2.Whether the advocate's mistake in miscalculating the commencement date justifies an extension of time under rule 4

Key legal issues

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01

Commencement of time for filing an appeal under the Certificate of Delay

Holding

Time commenced to run on 20 May 1998, when the proceedings and judgment were ready for collection, making 19 July 1999 the last day for filing the appeal.

Reasoning

Paragraph 6 of the Certificate of Delay recorded that by letter dated 20 May 1998 the advocates were notified that the proceedings and judgment were ready for collection on payment of court fees. Rule 81, under which the Certificate is issued, provides for extension in respect of copies, not certified copies, and Rule 85 does not require certification. Paragraph 8's reference to certified copies covering a period to 19 June 1998 therefore did not alter the commencement date.

p. 2
02

Reconciliation of inconsistent paragraphs of the Certificate of Delay

Holding

If paragraphs 6 and 8 cannot be reconciled, paragraph 6, being first, prevails over paragraph 8; in any event they refer to two different categories of documents.

Reasoning

The court applied the interpretive principle that where two clauses of a document are repugnant to each other, the first is received and the latter rejected. Paragraph 8 referred to certified copies of proceedings and judgment, whereas Rule 81 concerns mere copies and Rule 85 does not require certification, so the two paragraphs in fact addressed different classes of documents.

p. 3
03

Whether advocate's mistake warrants extension of time under rule 4

Holding

The discretion under rule 4 was declined because there was no material basis for extension; the advocate's concession showed there was no ambiguity or misinterpretation of the Rules, only simple human error.

Reasoning

Although the rule 4 discretion is wide and unfettered, the court found no material upon which to base an extension. Counsel conceded there was no ambiguity, misdescription or misinterpretation of the Rules, only human error in miscalculating the commencement date. The application, filed within a week of the appeal being struck out, raised no question of delay but failed on the merits of the computation.

p. 3

Legal principles established

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  • Where two clauses or parts of a document are repugnant to each other and cannot be reconciled, the first prevails and the latter is rejected.
  • Time for filing an appeal commences to run from the date the copies (not necessarily certified copies) of the proceedings and judgment are ready for collection.

Court orders

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  1. 1.The application for extension of time is dismissed with costs

The bench

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

majority

Wrote the judgment

On appeal from
High Court (implied - proceedings and judgment whose appeal was struck out)
Civil Appeal No. 154 of 1998 (struck out on 20 May 1999)
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time discretion)

Relief refused

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Extension of time to file the notice of appeal and record of appeal

No material basis for exercising the rule 4 discretion; the advocate's error was simple human error with no ambiguity in the Rules, and time ran from 20 May 1998

p. 3

Costs

The application fails and is dismissed with costs.

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.

It is, therefore, clear that as at 20 May, 1998 the proceedings and judgment were ready for collection and, in my view, that is the date on which time commenced to run.
p. 2Commencement of time for filing appeal
If there are two Clauses or parts of a document repugnant to each other, the first will be received and the latter is rejected
p. 2Interpretation of inconsistent document clauses
I must decline to exercise my discretion. Accordingly, the application fails and is dismissed with costs.
p. 3Final orders - dismissal of extension of time application

Issues in the judgment

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minor

The case number of the present application is not stated in the judgment; only the struck-out appeal (Civil Appeal No. 154 of 1998) is identified.

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, "ARTHUR KANAI KAMAU & ANOTHER vs CAROLINE NJERI MWICIGI [1999] KECA 170 (KLR)", Case Analysis (1999). Not stated in the judgment (application following striking out of Civil Appeal No. 154 of 1998). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/170/eng@1999-11-01

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