Mariamu Abubakar Ireri v National Cereals & Produce Board
The bottom line
#Kenya's Court of Appeal confirmed that requesting court proceedings copies in time pauses appeal deadlines, saving the National Cereals & Produce Board's appeal.
What this practically means
#Executive summary
#Key legal issues
#Effect of the proviso to rule 81 on computation of time for filing an appeal
A timely request for certified copies of proceedings, filed in court and copied to the opposing party's advocates within 30 days, stops time from running until the copies are supplied; the respondent's record of appeal was therefore filed within time.
The respondent applied for copies of proceedings by letter dated 1st August 2005, filed on 2nd August 2005, and copied to the applicants' advocates on record. A certificate of delay confirmed the proceedings were only supplied on 3rd September 2008. Time therefore stopped running from the date of the request and resumed on delivery of the copies. The record of appeal filed on 29th October 2008 fell within the 60-day period thereafter, so there was no delay in taking the essential step.
Whether the notice of appeal should be struck out for unreasonable delay
The application to strike out the notice of appeal under rules 80, 81 and 82 failed because no delay in taking the essential step was established.
The applicants contended there had been unreasonable delay in filing the appeal. The court found that the notice of appeal was filed within time, that time had stopped running under the proviso to rule 81, and that the record was filed within the statutory period after delivery of proceedings. It had not even been alleged that proceedings were available earlier than 3rd September 2008. Accordingly there was no merit in the striking-out application and it was dismissed with costs.
Legal principles established
#- Where a party applies for copies of proceedings within 30 days of the decision and copies the application letter to the advocates on record for the opposing party, the running of time for instituting the appeal stops under the proviso to rule 81, and resumes only when the copies of proceedings are supplied.
- Where time stopped running under the proviso to rule 81, a record of appeal filed within the prescribed 60 days of the resumption of time is not out of time and no delay can be attributed to the appellant.
Court orders
#- 1.The applicants' application to strike out the notice of appeal dated 2nd August 2005 was dismissed with costs
- On appeal from
- High Court of Kenya at Mombasa
- H.C.C.C. No. 152 of 1997
- Jurisdiction invoked
- Rules 80, 81(1) and (2) and 82(a) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mariamu Abubakar Ireri v National Cereals & Produce Board", Case Analysis (2009). Civil Application 92 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/121/eng@2009-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.