MARIAMU ABUBAKAR IRERI & another v NATIONAL CEREALS & PRODUCE BOARD [2009] KECA 121 (KLR)
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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there was unreasonable delay by the respondent in taking the essential step of filing the appeal, warranting striking out the notice of appeal under rules 80, 81 and 82 of the Court of Appeal Rules
- 2.Whether the proviso to rule 81 stopped the running of time for filing the record of appeal where the respondent applied for copies of proceedings within 30 days and copied the letter to the applicants' advocates
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
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
Relief refused
#Striking out of the notice of appeal dated 2nd August, 2005
The court found no delay in taking the essential step, as time stopped running under the proviso to rule 81 and the record was filed within 60 days of delivery of proceedings
Costs
The application was dismissed with costs to the respondent
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.
By dint of the proviso to rule 81 of the Court of Appeal Rules, and in view of the fact that the letter was filed in court and copied to the applicants’ advocates’ within 30 days of the decision against which an appeal is intended, time stopped running.
The running of the time resumed on or about 3rd September when copies of proceedings were delivered to the respondent.
In the result we find no merit in the application before us. It is ordered dismissed with costs.
Issues in the judgment
#The certificate of delay quoted in the judgment refers to judgment 'made by the court on 20th day of July, 2005' whereas the judgment under appeal is elsewhere stated to have been dated 29th July 2005; there is also an internal discrepancy between '3rd September, 2008' and '3rd September, 2005' in the judgment's narrative.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "MARIAMU ABUBAKAR IRERI & another v NATIONAL CEREALS & PRODUCE BOARD [2009] KECA 121 (KLR)", 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.