Paul Wanyonyi v Silver Star Parcels Services Limited (Civil Appeal (Application) 250 of 2009) (Civ) [2010] KECA 316 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a registrar's certificate of delay governs appeal timelines, so Silver Star's appeal could not be struck out as late.
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 appeal was instituted within the time stipulated by Rule 81(1) of the Court of Appeal Rules, taking into account the proviso excluding time certified as necessary for preparation and delivery of a copy of proceedings
- 2.From what date time begins to run for purposes of computing the 60-day period for instituting an appeal - the date of the registrar's certificate of delay or the date of receipt of notice that proceedings are ready
- 3.What weight is to be attached to a certificate of delay issued by the Deputy Registrar
Key legal issues
#Weight of a certificate of delay
The certificate of delay is prima facie correct and binding on the Court unless a party demonstrates what is wrong with it.
The Court endorsed Platt, J.A.'s statement in Nairobi Home Economics that the registrar's certificate is prima facie correct, clarifying that it is not irrebutable. The registrar is empowered by the Rules to certify time to be excluded and the certificate should contain matters of fact within the registrar's knowledge or capable of verification. The Court is handicapped in verifying the information but may disregard glaring errors on the face of the certificate.
Commencement of time for computing the appeal period
Time is computed by reference to the period certified by the registrar as necessary for preparation and delivery of the copy of proceedings, not from the date the appellant's advocates receive notice that proceedings are ready.
The Court expressly declined to follow the restrictive test in Richard Kanyago that time runs from receipt of the court's notice. That test ignores systemic delays at the registry that may arise even after an appellant receives notice that proceedings are ready, and could work injustice. The proviso to Rule 81(1) is concerned with reality, not speculation, and the certified period governs.
Whether the appeal was instituted out of time
The appeal filed on 16th October 2009 was within the 60-day period when the certified period (4th September 2008 to 18th August 2009) was excluded.
Judgment was delivered on 8th August 2008; the application for proceedings was made on 19th August 2008, within 30 days, and copied to the respondent's advocates as required by sub-rule (2). The certificate of delay certified the period to 18th August 2009. The appellant's explanation that fees were paid on 13th August 2009 but proceedings were withheld for corrections until 18th August 2009 was supported by the certificate, which had not been shown to be incorrect.
Legal principles established
#- A certificate of delay issued by the registrar under Rule 81(1) is prima facie correct and binds the Court unless shown to be incorrect; the Court cannot close its eyes to glaring errors on the face of the certificate but has no independent means of verifying the information.
- Time for computing the period for instituting an appeal is the time certified by the registrar as necessary for preparation and delivery of the copy of proceedings, not the date of receipt by the appellant's advocates of notice that proceedings are ready.
Court orders
#- 1.The application to strike out the notice of appeal and the record of appeal is dismissed
- 2.Costs of the application awarded to the respondent (the appellant in the appeal)
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 1003 of 2006
- Jurisdiction invoked
- Rules 80 and 81(1) of the Court of Appeal Rules (application to strike out a notice and record of appeal instituted out of time)
Relief refused
#Striking out of the notice of appeal and the record of appeal
The court was satisfied that the appeal was filed within the time stipulated by Rule 81(1) once the certified period for preparation and delivery of proceedings was excluded
Costs
Application dismissed with costs to the respondent (Paul Wanyonyi, applicant/respondent in the application).
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.
In the result, we are satisfied that the appeal was filed within the time stipulated by Rule 81 (1) and dismiss the application with costs to the respondent.
That test is concerned with reality not speculation.
This Court is handicapped. It has no means of verifying the information although it cannot close its eyes to glaring errors on the face of a certificate.
It has not been shown that the information in the certificate is incorrect and we have to give effect to it.
Issues in the judgment
#The judgment at one point refers to Mr. Kaluma contending there is no explanation for the period from '6th August, 2008' when, on the chronology given, the relevant period began on 4th September, 2008 (the date the application for proceedings was delivered) and the notice issue arose in 2009; the date '2008' appears to be a slip for '2009'.
The heading and caption describe Paul Wanyonyi as 'APPLICANT/RESPONDENT' and Silver Star Parcels Services Limited as 'RESPONDENT/APPELLANT', yet the body refers to Mr. Kaluma as 'learned counsel for the applicant' and Mr. Wamiti as 'learned counsel for the respondent', while Mr. Wamiti's client is described as 'the appellant' in the replying affidavit passage; the party designations alternate in the text.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paul Wanyonyi v Silver Star Parcels Services Limited (Civil Appeal (Application) 250 of 2009) (Civ) [2010] KECA 316 (KLR)", Case Analysis (2010). Civil Appeal (Application) No. 250 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/316/eng@2010-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.