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Court of AppealOtherCivil Appeal No. 235 of 2001

Omega Enterprises (Kenya) Limited v Eldoret Sirikwa Hotel Limited & 2 others [2001] KECA 152 (KLR)

Court of Appeal of Kenya
5 December 2001
Philip Kiptoo TunoiP. K. TunoiASA. B. ShahMKM. Ole Keiwua
429 words in judgment
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The bottom line

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Kenya's Court of Appeal postponed a hearing so a party could verify the record and file its own appeal; court-caused delays don't count against litigants.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Court of Appeal at Nairobi, delivered by the court (Tunoi, Shah and Keiwua, JJ.A.) in Civil Appeal No. 235 of 2001, an appeal by Omega Enterprises (Kenya) Limited against the judgment and decree of Ringera, J. in H.C.C.C. No. 50 of 1999 dated 20th July 2001. The appeal had been lodged on 5th September 2001 on a record of appeal prepared from proceedings and judgment obtained by the appellant's counsel, Mr. Esmail. When the appeal was called on for hearing, Mr. Kipkorir, counsel for the first respondent, sought an adjournment. He had filed a Notice of Appeal within the prescribed time and applied for the proceedings and judgment, but the superior court only notified him on 13th November 2001 that they were ready for collection. He doubted the veracity of the appellant's record, wished to compare it with the record supplied by the court, and intended to lodge his own appeal or cross-appeal, still being within time. The court held that neither counsel could be faulted; the first respondent was entitled to rely on the letter of 13th November 2001, which fixed the operative date for lodging an appeal, and time had not run out. Balancing the appellant's commendable expedition against the interests of the first respondent and others, the court took the appeal out of the cause list and stood it over generally to a new date to be fixed in the Registry, with the costs of the adjournment to be in the appeal in any event. The merits were not heard and the High Court judgment was not disturbed. No authorities or statutory provisions were cited.

Questions the Court framed

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

  1. 1.Whether the hearing of the appeal should be adjourned to enable the first respondent to compare the record of appeal with the proceedings and judgment supplied by the superior court and to lodge an appeal or cross-appeal.
  2. 2.Whether the first respondent remained within time to lodge an appeal or cross-appeal, given that the superior court only notified counsel on 13th November, 2001 that the proceedings and judgment were ready for collection.

Key legal issues

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01

Whether the hearing of the appeal should be adjourned to enable the first respondent to verify the record of appeal and lodge an appeal or cross-appeal.

Holding

Yes. The appeal was taken out of the cause list and stood over generally to a new date to be fixed in the Registry, with the costs of the adjournment to be in the appeal in any event.

Reasoning

Counsel for the first respondent had filed a Notice of Appeal within the prescribed time and applied for the proceedings and judgment, but was only notified on 13th November, 2001 that they were ready for collection. The appeal before the court rested on a record prepared by the appellant's counsel, whose veracity the first respondent doubted and wished to compare against the court's own record. The court held that neither counsel could be faulted and that the respondent's interests had to be weighed against the appellant's expedition, justifying the adjournment sought.

p. 2
02

Whether the first respondent remained within time to lodge an appeal or cross-appeal.

Holding

Yes. The operative date for lodging the appeal is the date shown on the superior court's letter of 13th November, 2001, and time for the first respondent had not run out.

Reasoning

The court accepted that the first respondent's counsel had done all that was required of him: he filed a Notice of Appeal within the prescribed time and applied for the proceedings and judgment. The delay lay with the superior court, which only signified readiness for collection on 13th November, 2001. Counsel was entitled to rely on that letter, which fixed the operative date for lodging an appeal, so the first respondent still had time to lodge an appeal or cross-appeal if advised.

p. 2

Legal principles established

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  • Where a party has filed a Notice of Appeal within the prescribed time and applied for the proceedings and judgment, that party is entitled to rely on the superior court's notification of when they are ready for collection, and the operative date for lodging the appeal or cross-appeal runs from the date shown on that notification.
  • In deciding whether to adjourn an appeal, the court must weigh the appellant's expedition in lodging the appeal against the interests of a respondent who has not yet had access to the certified proceedings and wishes to verify the record or lodge a cross-appeal.

Court orders

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  1. 1.The appeal is taken out of the cause list and stood over generally to a new date to be fixed in the Registry.
  2. 2.The costs occasioned by the adjournment shall be in the appeal in any event.

The bench

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

Philip Kiptoo Tunoi
majority
AS
majority
MK
majority
On appeal from
High Court of Kenya
H.C.C.C. No. 50 of 1999
Jurisdiction invoked
No constitutional or statutory provision is cited in the ruling; the matter was before the Court of Appeal at Nairobi as Civil Appeal No. 235 of 2001, an appeal from the judgment and decree of the High Court (Ringera, J.) in H.C.C.C. No. 50 of 1999.

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.

For the above reasons this appeal is taken out of today's cause list and stood over generally to a new date to be fixed in the Registry. The costs occasioned by this adjournment shall be in the appeal in any event.
p. 2Final orders - adjournment of the appeal and costs of the adjournment
They were entitled to rely on it and by doing so the operative date for lodging of appeal is as shown thereon. They still had time and time for them had not run out to take any action they wished to.
p. 2Operative date for lodging an appeal or cross-appeal where the superior court's notification of readiness is late
While we commend Mr. Esmail for the expedition with which he lodged this appeal, we must also consider the interests of the first respondent and others.
p. 2Balancing expedition by an appellant against the interests of a respondent in an adjournment application
No doubt, the letter of 13th November, 2001 causes us some concern. Neither Mr. Kipkorir nor Mr. Le Pelley can be faulted.
p. 2Counsel not to be faulted for delay attributable to the superior court

Issues in the judgment

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minor

Typographical duplication in the text of the ruling: the phrase 'wanted to cross check and examine' appears twice consecutively in the same sentence.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Omega Enterprises (Kenya) Limited v Eldoret Sirikwa Hotel Limited & 2 others [2001] KECA 152 (KLR)", Case Analysis (2001). Civil Appeal No. 235 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/152/eng@2001-12-05

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