Duncan Osano (Suing through his father & next friend) James Osano v Jane Nyambura Mwangi & Kibugi Gikuro [2001] KECA 340 (KLR)
The bottom line
#Kenya's Court of Appeal refused to strike out a notice of appeal because the appellants had requested court proceedings, meaning the appeal deadline had not yet started running.
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 notice of appeal lodged by the respondents on 15th March, 2000 ought to be struck out on the ground that the respondents have taken no serious steps to lodge the record and memorandum of appeal.
- 2.Whether the respondents' advocates' letter dated 14th March, 2001 requesting copies of the proceedings and judgment was received by the applicants' advocates and, if not, whether time to lodge the record of appeal had begun to run under the proviso to rule 81(1).
Key legal issues
#Whether an application to strike out a notice of appeal can succeed where the intending appellants have requested copies of the proceedings and judgment but have not yet lodged the record of appeal.
The application fails: the intending appellants enjoy the benefit of the proviso to rule 81(1), so the time to lodge the record of appeal has not yet begun to run and there is at this stage nothing to strike out.
The respondents' advocates, M/S Okwach & Company, wrote to the Registrar of the superior court on 14th March, 2001 requesting copies of the proceedings and judgment and copied the letter to the applicants' advocates, M/S Njage Nyaboke & Company. On the face of the letter it was copied to those advocates, and the applicant produced nothing tangible to show it was not received. The proviso to rule 81(1) was therefore engaged, the time to lodge the record of appeal had not begun to run, and the court had no alternative but to dismiss the application.
Whether receipt by the applicants' advocates of the letter requesting copies of the proceedings was a matter in issue before the court.
It was not: in the absence of anything tangible to show that the letter might not have been received, the court would not entertain the allegation of non-receipt.
The letter of 14th March, 2001 from M/S Okwach & Company Advocates to the Registrar of the superior court was, on its face, copied to M/S Njage Nyaboke & Company Advocates for the applicant. The court held that whether the copied letter was actually received could not be contested before it, because the applicant adduced nothing tangible to demonstrate non-receipt. Mere assertion by an applicant that a copied letter went unreceived is therefore insufficient; some tangible evidence is required before receipt becomes triable.
Legal principles established
#- Where an intending appellant has written to the Registrar requesting copies of the proceedings and judgment and has copied that letter to the opposing advocates, the proviso to rule 81(1) applies and the time to lodge the record of appeal has not yet begun to run; an application to strike out the notice of appeal is therefore premature.
- A party alleging that a letter copied to its advocates was not received must place tangible evidence of non-receipt before the court; mere assertion does not put receipt in issue.
Court orders
#- 1.The application to strike out the notice of appeal lodged on 15th March, 2000 is dismissed.
- 2.Costs of the application to be costs in the intended appeal.
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. 2890 of 1997
- Jurisdiction invoked
- Rules 80, 81 and 82 of the Court of Appeal Rules (referred to in the ruling as 'the Rules of this Court'), invoked by the applicant's motion to strike out the notice of appeal
Relief refused
#Striking out of the notice of appeal lodged by the respondents on 15th March, 2000
The respondents enjoy the benefit of the proviso to rule 81(1); the time to lodge the record of appeal has not yet begun to run, and there was nothing tangible to show that the letter requesting copies of the proceedings was not received by the applicants' advocates.
Costs
Costs of this application will be costs in the intended appeal.
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.
In these circumstances the respondents do have the benefit of the proviso to rule 81(1) of the Rules of this Court. That is to say the time to lodge the record of appeal has not yet begun to run.
Whether it was received by the said advocate cannot be in issue before us as there is nothing tangible before us to show that the letter might not have been received.
That being the case we have no alternative but to dismiss this application. It is ordered dismissed. Costs of this application will be costs in the intened appeal.
Issues in the judgment
#Clerical/typographical errors in the original ruling: the costs order prints 'intened' for 'intended'; the sentence 'On the face if the letter is copied to the said advocates.' is garbled; and the header refers to 'the Respondent' in the singular although there are two respondents.
The judgment under attack is attributed to 'Ole Keiwua, JA' although it is described as a judgment of the High Court; the 'JA' designation is anomalous on the face of the ruling and may be a clerical error.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Duncan Osano (Suing through his father & next friend) James Osano v Jane Nyambura Mwangi & Kibugi Gikuro [2001] KECA 340 (KLR)", Case Analysis (2001). Civil Application No. NAI. 84 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/340/eng@2001-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.