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Court of AppealDismissedCivil Appli 26 of 2009· [2009] KECA 199 (KLR)

Rodgers Abisai T/A Abisai & Company Advocates v Wachira Waruru The Standard Limited

Court of Appeal of Kenya
17 July 2009
Philip Kiptoo TunoiP.K. TunoiPWP.N. WakiJOJ.W. Onyango Otieno
754 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that you can't have an appeal struck out just because the court registry hasn't supplied the documents needed to file it.

What this practically means

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Executive summary

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The applicant, Rodgers Abisai, applied to the Court of Appeal at Kisumu under the Court of Appeal Rules to have the respondents' notice of appeal, dated 23rd May 2007 and lodged on 25th May 2007, deemed withdrawn on the ground that they had failed to take essential steps to lodge the record of appeal within the time stipulated by the Rules. The appeal was from a judgment of Bauni, J. in Kisii HCCC No. 52 of 2001 dated 18th May 2007, assessing damages following the Court of Appeal's earlier direction that the matter be remitted to the High Court for assessment. The respondents had on 30th May 2007 requested the Deputy Registrar for typed certified copies of the proceedings and judgment, which had not been received. Counsel for the applicant argued that the request for certified rather than uncertified copies breached the mandatory proviso to rule 81(1). The Court disagreed, holding that certified copies of proceedings and judgment are not necessary documents for an appeal and that rule 81(1) is not breached merely by asking for certified copies; a breach would arise only where uncertified copies are available but the intending appellant insists on certified ones. Since the Deputy Registrar had never replied and the availability of the documents was unknown, the Court found it would be unjust to condemn the respondents and concluded the application was premature. The full bench of Tunoi, Waki and Onyango Otieno, JA unanimously dismissed the application with costs.

Key legal issues

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01

Whether requesting certified copies of proceedings and judgment constitutes failure to take an essential step under rule 81(1)

Holding

No. Rule 81(1) is only breached where uncertified copies are available and the intending appellant refuses to use them, insisting on certified copies.

Reasoning

The court held that certified copies are unnecessary for mounting an appeal since uncertified copies can be obtained more quickly. Where the Deputy Registrar has not replied to a request and it is unknown whether any copies, certified or uncertified, are available, an intending appellant cannot be faulted for failing to compile the record. The obligation to supply the documents rests on the Deputy Registrar.

p. 2
02

Whether an application to deem a notice of appeal withdrawn was premature on the facts

Holding

Yes. The application ought not to have been lodged where it was not established that the respondents' omission, if any, breached rule 81.

Reasoning

The court noted the absence of any reply from the Deputy Registrar on the availability of documents and observed that counsel for the applicant himself did not know whether the documents were available. Given that uncertainty, condemning the respondents would be unjust, and the applicant's motive could be gleaned from the subject matter of the dispute. The application was therefore dismissed.

p. 2

Legal principles established

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  • Certified copies of proceedings and judgment are not necessary documents for compiling a record of appeal; an intending appellant requires only uncertified copies.
  • Rule 81(1) of the Court of Appeal Rules is not breached by merely requesting certified copies of proceedings; a breach may occur only where uncertified copies are available but the intending appellant insists on certified ones.

Court orders

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  1. 1.The application to deem the notice of appeal dated 23rd May 2007 as withdrawn is dismissed
  2. 2.Costs of the application awarded to the respondents
On appeal from
High Court of Kenya at Kisii
H.C.C.C. No. 52 of 2001
Jurisdiction invoked
Application under the Court of Appeal Rules to deem a notice of appeal as withdrawn

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Rodgers Abisai T/A Abisai & Company Advocates v Wachira Waruru The Standard Limited", Case Analysis (2009). Civil Appli 26 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/199/eng@2009-07-17

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