BENEDICT MWAZIGHE & another v GASPER WALELE & 2 others [2011] KECA 347 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a notice of appeal because the appellants never requested court proceedings in writing within thirty days as the rules require.
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 notice of appeal should be struck out for failure to file the memorandum and record of appeal within sixty days
- 2.Whether the respondents could rely on the proviso to rule 81(1) despite not making a written request for copies of proceedings within thirty days and sending a copy to the applicants
- 3.Whether sections 3A and 3B of the Appellate Jurisdiction Act or Article 159 of the Constitution could salvage the intended appeal
Key legal issues
#Compliance with rule 81 proviso for bespeaking proceedings
The intended appeal, not yet filed, would be hopelessly out of time because the respondents never wrote within thirty days for copies of the proceedings and judgment nor sent a copy of such a letter to the applicants; the proviso to rule 81 was therefore unavailable and the notice of appeal was struck out.
The judgment was delivered on 2nd November 2007 and the respondents knew of it by 21st November 2007, still leaving about ten days to write the required letter and send a copy to the applicants. They filed a notice of appeal in that period but made no such request until 25th October 2010, years outside the thirty days, and even that letter was not shown to have been served as required. The sixty-day period ran from 21st November 2007 by virtue of Ojwang' J.'s extension, and nothing salvaged the lapse.
Whether Article 159 or sections 3A and 3B of the Appellate Jurisdiction Act could cure the lapse
No; those provisions were intended to avoid delay caused by technicalities, not to excuse an omission that would prolong delay and defeat expeditious disposal.
The court considered whether the recent introduction of sections 3A and 3B and Article 159 of the new Constitution could breathe life into the matter. It concluded those provisions target delays occasioned by technical application of rules; allowing the respondents' omission to stand would produce more delay and defeat the principle of expeditious disposal enshrined in sections 3A and 3B. The overriding-objective provisions therefore offered no refuge to a party who failed to take an essential procedural step.
Legal principles established
#- An appellant cannot rely on the proviso to rule 81 unless the application for a copy of the proceedings was made in writing within thirty days of the decision and a copy of it was sent to the respondent.
- Where a notice of appeal has lapsed through failure to institute the appeal in time and the proviso to rule 81 has not been complied with, the notice of appeal serves no useful purpose and will be struck out; sections 3A, 3B of the Appellate Jurisdiction Act and Article 159 of the Constitution will not save such inaction.
Court orders
#- 1.The notice of appeal lodged on 21st November 2007 is struck out
- 2.Costs of the application awarded to the applicants
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. 189 of 1994
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal under the Appellate Jurisdiction Act (including sections 3A and 3B) and the Court of Appeal Rules, rule 81, on an application to strike out a notice of appeal
Relief refused
#Respondents' plea to retain the notice of appeal and proceed with the intended appeal
No request for copies of proceedings was made in writing within thirty days and no copy was sent to the applicants, so the proviso to rule 81 could not apply and the appeal would be out of time
Costs
Costs of the application to the applicants
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.
It is clear that the appeal which is yet to be filed will be hopelessly out of time.
An applicant shall not be entitled to rely on the proviso to sub-rule (1) unless his application for such copy was in writing and a copy of it was sent to the respondent.
Since the respondent failed to comply with it, nothing would salvage the appeal. Hence the notice of appeal no longer serves any useful purpose.
In our view, the notice of appeal cannot stand, it is struck out with costs to the applicants. It is ordered.
Issues in the judgment
#The judgment states the respondents came to know of the judgment on 21st November 2007 in the opening narrative, while later text says they came to know of it 'on 21st November, 2007' after claiming they only learned of it then; the two references are consistent, but counsel's concession is phrased as the thirty days 'within which to make a request for copies of proceedings and judgment had not expired' - internally consistent and no material contradiction.
The judgment says no request was made within 30 days 'of the date of ruling' whereas the decision appealed from was a judgment, a minor internal wording inconsistency.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Nicholas Omondi v A Rocha Limited [2016] KECA 140 (KLR)[2016] KECA 140 (KLR)4 Nov 2016followed
Cite this brief
#Cite this brief
Caselaw, "BENEDICT MWAZIGHE & another v GASPER WALELE & 2 others [2011] KECA 347 (KLR)", Case Analysis (2011). Civil Application No. NAI. 255 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/347/eng@2011-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.