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Court of AppealDismissedCivil Appli No. 49 of 2008· [2009] KECA 194 (KLR)

ZAINABU ALI RUWA v A.P.A. INSURANCE COMPANY LTD [2009] KECA 194 (KLR)

Court of Appeal of Kenya
24 July 2009
ROR.S.C. OmoloSBS.E.O. BosireEOE.O. O'Kubasu
947 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that only written requests for court proceedings within 30 days count towards appeal deadlines, so APA Insurance's appeal survived.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Omolo, Bosire and O'Kubasu JJA) dismissed an application by Zainabu Ali Ruwa seeking an order that a notice of appeal lodged by A.P.A. Insurance Company Ltd on 26th July 2007 be deemed withdrawn under Rule 82(1)(a) of the Court of Appeal Rules. The notice was lodged on the same day that Sergon J. struck out the insurer's defence in H.C.C.C. No. 216 of 2006. The applicant argued that time to appeal began running from an oral request made to the Judge for copies of the ruling and proceedings. The Court rejected this, holding that only written applications made within thirty days and copied to the opposite party are recognised under the proviso to Rule 81 and Rule 82(2). The respondent had written to the Deputy Registrar on the day of the ruling requesting certified copies, copied to the applicant's advocates, and obtained a certificate of delay showing the proceedings were supplied on 16th April 2008; the appeal was lodged on 17th April 2008. The Court observed that it was not being asked to strike out the notice or record of appeal, where different considerations would apply, and that the certificate of delay prima facie showed the appeal was lodged in time. The applicant's suggestion, supported by a different certificate of delay dated 26th November 2007, that proceedings were available earlier, was dismissed as mischievous since the applicant had not appealed and had no need of such a certificate. The motion was dismissed with costs of the motion to be in the appeal already lodged.

Key legal issues

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01

Effect of an oral request for proceedings on the running of time to appeal

Holding

An oral application before the trial judge does not trigger or suspend the time for appealing; only written applications within thirty days, copied to the opposite party, are recognised.

Reasoning

Counsel for the applicant argued that time began to run from the oral request made to Sergon J. The Court rejected this, holding that the proviso to Rule 81 and Rule 82(2) recognise only written applications made within thirty days of the ruling and copied to the opposite party. The respondent's same-day written letter to the Deputy Registrar satisfied this requirement.

p. 2
02

Whether the notice of appeal should be deemed withdrawn under Rule 82(1)(a)

Holding

The notice of appeal was not deemed withdrawn because the appeal was instituted within time; the certificate of delay showed the proceedings were supplied on 16th April 2008 and the appeal was lodged on 17th April 2008.

Reasoning

The Court distinguished an application to deem a notice withdrawn from one to strike out a record of appeal. Since the respondent applied for proceedings in writing as required, obtained a certificate of delay showing delivery on 16th April 2008, and lodged the appeal on 17th April 2008, it had done all the rules required and the deeming provision did not apply.

p. 2

Legal principles established

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  • Only written applications for copies of the ruling and proceedings, made within thirty days and copied to the opposite party, extend time under the proviso to Rule 81 and Rule 82(2); oral requests to the trial judge do not start time running.
  • Where a party lodges a notice of appeal and fails to institute the appeal within the appointed time, the notice is deemed withdrawn and that party is liable for costs unless the Court otherwise orders.

Court orders

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  1. 1.The applicant's notice of motion dated 26th March 2008 is dismissed
  2. 2.The costs of the dismissed motion shall be in the appeal already lodged
On appeal from
High Court of Kenya at Mombasa
H.C.C.C. No. 216 of 2006
Jurisdiction invoked
Section 3(2) of the Appellate Jurisdiction Act and Rules 42, 45(1) and 82(a) of the Court of Appeal Rules

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, "ZAINABU ALI RUWA v A.P.A. INSURANCE COMPANY LTD [2009] KECA 194 (KLR)", Case Analysis (2009). Civil Appli No. 49 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/194/eng@2009-07-24

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