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Court of AppealDismissedCivil Appeal 232 of 2003

Panalpina (E.A) Ltd v Joseph Njuguna Nga'e

Court of Appeal of Kenya
5 May 2006
1,736 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to strike out a late appeal because an official certificate of delay proved the court itself caused the 398-day delay.

What this practically means

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Executive summary

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Panalpina (E.A) Ltd applied under rules 42 and 80 of the Court of Appeal Rules to strike out Joseph Njuguna Nga'e's appeal, contending that the record of appeal, filed on 23rd September 2003, was out of time because the Deputy Registrar had written on 25th October 2002, and reminded on 10th July 2003, that the proceedings and judgment in H.C.C.A. No. 297 of 1999 were ready for collection. The respondent countered that the October 2002 letter was issued in error: the proceedings were only typed drafts, unproof-read and uncertified, and were never actually availed until 7th August 2003. He relied on the Deputy Registrar's unchallenged certificate of delay of 14th August 2003, which recorded that the Court took 398 days, from 17th June 2002 to 7th August 2003, to prepare and supply the copies. The Court of Appeal (Githinji, Onyango Otieno and Deverell JJA) held that the certificate of delay is the official document under the proviso to rule 81(1) that guides the Court in computing and validating delay, that its unchallenged contents stand, and that they effectively confirmed the earlier letters were written in error. Since the respondent was never given even uncertified copies, the delay was attributable to the Court. Reiterating that striking out an appeal is a serious step requiring proper and weighty reasons, the court dismissed the application with costs to the respondent.

Questions the Court framed

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

  1. 1.Whether the record of appeal filed out of the prescribed period should be struck out as incompetent
  2. 2.Whether essential steps in the appeal were not taken or not taken within the prescribed time
  3. 3.What weight attaches to an unchallenged certificate of delay in computing delay under the proviso to rule 81(1)

Key legal issues

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01

Weight of the certificate of delay in computing delay under rule 81(1)

Holding

The unchallenged certificate of delay covering the whole period up to 7th August 2003 validated the late filing of the record of appeal, confirming the Deputy Registrar's earlier letters were issued in error.

Reasoning

The Deputy Registrar's certificate of delay, issued on 14th August 2003, gave the full history of efforts to prepare proceedings and stated the Court took 398 days to supply them. It was never challenged by the applicant, so its contents stand. It effectively confirmed that the letters of 25th October 2002 and 10th July 2003 stating proceedings were ready were written in error, since uncertified copies were never even given.

p. 3
02

Whether certification of proceedings is necessary before compiling the record of appeal

Holding

Certification is not legally necessary for compiling the record of appeal, but the thrust of the respondent's letter was that even uncertified copies had not been handed over.

Reasoning

Counsel for the applicant correctly noted that certification is not required in law for compiling a record of appeal. However, the court read the respondent's letter of 3rd February 2003 as showing the real complaint was that the copies, certified or not, had only been typed as drafts, not proof-read, and had not been handed over, so the point did not assist the applicant.

p. 3
03

Threshold for striking out an appeal

Holding

Striking out is a serious step requiring proper and weighty reasons; the court must be satisfied it is the only decision open to it.

Reasoning

The court reiterated that striking out an appeal is drastic and will not be done lightly. Given the unchallenged certificate of delay attributing the entire delay to the Court's own failure to supply proceedings, the applicant failed to show striking out was the only decision open, so the application failed.

p. 3

Legal principles established

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  • The certificate of delay is the official document under the proviso to rule 81(1) that guides the Court in computing and validating delay in filing a record of appeal, and it cannot be taken lightly.
  • An unchallenged certificate of delay's contents stand and bind the Court's computation of delay.
  • Striking out an appeal requires proper and weighty reasons; it is a remedy of last resort.

Court orders

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  1. 1.The Notice of Motion seeking to strike out the appeal is dismissed with costs to the respondent/appellant

The bench

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

majority
majority
On appeal from
High Court of Kenya at Nairobi (Central)
H.C.C.A. No. 297 of 1999
Jurisdiction invoked
Rules 42 and 80 of the Court of Appeal Rules (application to strike out appeal)

Relief refused

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Striking out the appeal with costs to the applicant

The unchallenged certificate of delay showed the entire 398-day delay was attributable to the Court's failure to supply proceedings; striking out requires proper and weighty reasons

p. 3

Costs

Application dismissed with costs to the respondent/appellant

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.

Striking out an appeal is a serious matter and no court will do so without proper and weighty reasons before it. We too cannot do so without being satisfied that it is the only decision open to us.
p. 3Threshold for striking out an appeal
the certificate of delay in all these matters is an important document for it is the official document as provided under the proviso to rule 81(1) of the Court of Appeal Rules that would guide the Court whenever there is delay in filing record of appeal, in computing the period of delay and validating the same period of delay. It cannot be taken lightly by the Court.
p. 3Status of the certificate of delay
This application cannot succeed. It is dismissed with costs to the respondent/appellant. Orders accordingly.
p. 3Final orders

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, "Panalpina (E.A) Ltd v Joseph Njuguna Nga'e", Case Analysis (2006). Civil Appeal 232 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/264/eng@2006-05-05

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