John Nginyi Muchiri v Saul Korir Kiptalam & 6 others [2007] KECA 361 (KLR)
The bottom line
#Kenya's Court of Appeal refused to strike out notices of appeal because delay caused by the court registry preparing copies does not count against an appellant.
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 respondents failed to take essential steps to institute their appeals after filing notices of appeal
- 2.Whether the time for instituting the appeal had expired such that the notices of appeal should be struck out
- 3.Whether the notice of appeal filed by the 4th and 7th respondents was incurably defective in form and substance
Key legal issues
#Whether filing a notice of appeal and then taking no visible follow-up amounts to failure to take essential steps warranting striking out
No, where the appellant has within thirty days applied for certified copies of proceedings and judgment, the proviso to rule 81(1) excludes the time taken by the registrar, so the notice of appeal should not be struck out for delay attributable to the court's own preparation of the record.
The 2nd and 5th respondents' advocates wrote to the Deputy Registrar on 29th April, 2005, one day after judgment, requesting certified copies of the proceedings and judgment and offering to deposit the required payment; a similar letter was written on 31st January, 2007. No letter from the Deputy Registrar confirmed the copies were ready. The delay was therefore not the respondents' fault, and the applicant's motion was brought without merit.
Legal principles established
#- Where an applicant for a copy of the superior court proceedings makes the application in accordance with sub-rule (2) of rule 81 within thirty days of the decision, the time certified by the registrar as required for preparation and delivery of the copy is excluded when computing the time within which the appeal must be instituted.
Court orders
#- 1.The notice of motion dated 29th June, 2006 seeking to strike out the notices of appeal be and is hereby dismissed
- 2.Costs of the application awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nakuru
- H.C.C.C. No. 583 of 1996
- Jurisdiction invoked
- Rules 42, 43, 74, 80 and 81 of the Court of Appeal Rules (interlocutory application jurisdiction of the Court of Appeal)
Relief refused
#Striking out of the notices of appeal filed on 28th April, 2005 and 12th May, 2005
The respondents applied for certified copies of proceedings within thirty days of the decision, and under the proviso to rule 81(1) the time taken by the registrar to prepare the copies is excluded in computing the time for instituting the appeal; the applicants had gone to sleep on their own application.
Costs
Dismissed with costs to the respondents
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.
Provided that where an application for a copy of the proceedings in the superior court has been made in accordance with sub-rule (2) within thirty days of the date of the decision against which it is desired to appeal, there shall, in computing the time within which the appeal is to be instituted, be excluded such time as may be certified by the registrar of the superior court as having been required for the preparation and delivery to the appellant of such copy.
In view of the foregoing, we are satisfied that this application to strike out the notice of appeal is filed without any merit. We accordingly order that the notice of motion dated 29th June, 2006 be and is hereby dismissed with costs to the respondents.
Issues in the judgment
#The judgment is uncertain as to the date of filing of the notice of appeal because the rubber stamp on the file copy is illegible; the ruling proceeds on the ground of failure to take essential steps rather than expiry of time.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Nginyi Muchiri v Saul Korir Kiptalam & 6 others [2007] KECA 361 (KLR)", Case Analysis (2007). Civil Application No. 202 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/361/eng@2007-03-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.