Daima Bank Ltd & Whitestone Auctioneers v K.H. Osmond [2001] KECA 247 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you don't need certified copies of everything to file an appeal — but miss the deadline and your appeal notice dies.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an intended appellant must obtain certified copies of the pleadings, the proceedings and a signed copy of the judgment before lodging the record of appeal and signing the certificate required by rule 85(5) of the Court of Appeal Rules
- 2.Whether uncertified copies of the proceedings and judgment were available to the respondent in time to enable lodging of the record of appeal within the prescribed period
- 3.Whether a notice of appeal should be struck out where the record of appeal has been lodged out of time
Key legal issues
#Whether certified copies of the pleadings, proceedings and a signed copy of the judgment are required before an intended appellant can lodge the record of appeal and sign the rule 85(5) certificate
Only the decree or order appealed against must be certified; the pleadings, the trial judge's notes and the judgment or order need not be certified, and no signed copy of the judgment is required for the record of appeal
The court construed rules 85(1)(c), (d), (g) and (h) of the Court of Appeal Rules and held that, following the 1985 amendments, certification is required only for the decree or order appealed against. Counsel's insistence that she could not sign the rule 85(5) certificate without certified copies of the proceedings and a signed judgment was rejected as misconceived, the court adopting its earlier decisions in L.Z. Engineering Construction Limited and Mawji v Lalji, which held that the certificate gives leeway only for typographical or inadvertent mistakes and that judges sign the original judgment only.
Whether the respondent's delay was excused by the alleged unavailability of certified copies of the proceedings and a signed judgment
Uncertified copies of the proceedings and judgment were available to the intended appellant well before the expiry of the time for lodging the record of appeal, so the want of certified copies furnished no excuse for the delay
The court found as a fact that uncertified copies of the proceedings and judgment were available to the respondent by 24th August 2000, the date she lodged Civil Application No. Nai. 251 of 2000 seeking stay of execution. Her professed inability to lodge the record for want of certified copies and a signed judgment therefore failed, and no excuse remained for the delay in instituting the appeal until 13th February 2001.
Whether a notice of appeal should be struck out where the record of appeal is lodged out of time
A notice of appeal that is not followed by the lodging of the record of appeal within the prescribed time is spent and will be struck out
Time for lodging the record of appeal expired on or about 23rd October 2000. The record, filed on 13th February 2001 as Civil Appeal No. 23 of 2001, was out of time. A notice of appeal preserves the right to appeal only within the period allowed for lodging the record; once that period expires without the record being lodged, the notice is spent and the court will strike it out, with costs to the party who successfully moves against it.
Legal principles established
#- For purposes of lodging a record of appeal, the only document that must be certified is the decree or order appealed against; the pleadings, the trial judge's notes of the hearing and the judgment or order need not be certified
- The certificate under rule 85(5) does not presuppose certified copies of the record; it gives the appellant leeway only for typographical or inadvertent mistakes in the copies supplied by the superior court registry
- There is no requirement to include a signed copy of the judgment or ruling appealed against in a record of appeal; judges sign the original only
- Where the record of appeal is not lodged within the prescribed time, the notice of appeal is spent and will be struck out on application
Court orders
#- 1.The notice of appeal lodged by the respondent on 17th July 2000 is struck out, it being spent
- 2.The applicants are awarded the costs of the application
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. 3052 of 1997
- Jurisdiction invoked
- Rules 42, 43, 80 and 81 of the Court of Appeal Rules, under which the application to strike out the notice of appeal was stated to be brought
Relief refused
#The respondent's opposition to the striking-out of the notice of appeal, i.e. that the application be dismissed so the intended appeal could proceed
The court held that certified copies of the proceedings and a signed copy of the judgment were not required to lodge the record of appeal, that uncertified copies had been available since 24th August 2000, and that the record lodged on 13th February 2001 was out of time, rendering the notice of appeal spent
Costs
The applicants will have costs of this application.
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.
The appeal not having been lodged in time the fate of the notice of appeal in question is clear. It is spent. It is ordered struck out. The applicants will have costs of this application. These are our orders.
The only certified document that is necessary to enable an intended appellant to lodge an appeal is the decree or order appealed against as mandated by rule 85(1)(h) of the Rules.
It is quite clear that rule 85(5) of the Rules gives leeway to the appellant to cover any typographical or inadvertent mistakes that may creep in when the registry of the superior court types out the requisite copies.
It must be pointed out at this stage that there is no requirement for including a signed copy of any ruling sought to be appealed against. Judges sign the original, only generally.
It is clear that uncertified copies of proceedings and judgment were available at the time the respondent lodged Civil Application No. Nai. 251 of 2000 against the applicant on 24th August, 2000.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- K.H. Osmond v Daima Bank Limited& Whitestone Auctioneers (K) Limited [2001] KECA 215 (KLR)[2001] KECA 215 (KLR)4 Apr 2001applied
- Samuel Mugo Karanja v Chiriro Ndereba Njiri [2001] KECA 126 (KLR)[2001] KECA 126 (KLR)4 Apr 2001followed
Cite this brief
#Cite this brief
Caselaw, "Daima Bank Ltd & Whitestone Auctioneers v K.H. Osmond [2001] KECA 247 (KLR)", Case Analysis (2001). Civil Application No. Nai. 359 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/247/eng@2001-03-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.