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Court of AppealDismissedCivil Application No. 19 of 2014

Rodgers Abisai T/A Abisai & Company Advocates v Wachira Waruru & another [2014] KECA 378 (KLR)

Court of Appeal
19 September 2014
2,642 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that a party cannot lose their appeal because the court registry delayed supplying court proceedings.

What this practically means

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Executive summary

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By a Notice of Motion dated 31st March 2014, Rodgers Abisai, the decree-holder in Kisii H.C.C. No. 52 of 2001 in which Kaburu Bauni, J. had on 18th May 2007 awarded him Kshs.6,500,000 with costs and interest, sought to have the respondents' Notice of Appeal dated 23rd May 2007 and filed on 25th May 2007 deemed withdrawn, and consequentially the stay of execution granted on 3rd July 2007 in Civil Application No. 141 'B' of 2007 discharged. He argued that over seven years had elapsed without a record of appeal and that the respondents were guilty of indolence and laches for failing to follow up on their request for certified copies of proceedings. The respondents, through Eric Kivuva's affidavit, showed they had timely filed the Notice of Appeal, timely bespoken copies on 30th May 2007, partly paid the decretal sum in compliance with the stay, partially obtained proceedings, and were still waiting for the balance with no formal communication from the registry that the copies were ready. A differently constituted bench of the same court had on 17th July 2009 in Civil Application No. 26 of 2009 between the same parties held that in the absence of any reply from the Deputy Registrar it would be the height of injustice to condemn the respondents. Applying that ruling and distinguishing the three authorities cited by the applicant, the court held that while reminders and registry visits are desirable, the duty to prepare and supply typed copies remains the registry's; a litigant has no executive power over the registry and cannot be punished for delay caused by its default. The application was accordingly dismissed with costs to the respondents, with an urging to the High Court to supply the copies expeditiously.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondents' Notice of Appeal should be marked and/or deemed withdrawn for failure to institute an appeal within the prescribed period under Rule 84 of the Court of Appeal Rules
  2. 2.Whether the respondents were guilty of indolence and laches warranting condemnation despite having timely applied for copies of proceedings
  3. 3.Whether, absent formal communication from the court registry that certified copies of proceedings and judgment were ready for collection, time under the proviso to Rule 82 and Rule 83 had expired
  4. 4.Whether the stay of execution granted in Civil Application No. 141 'B' of 2007 should be discharged consequent upon the deeming of the Notice of Appeal as withdrawn

Key legal issues

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01

Whether time under the proviso to Rule 82 and Rule 83 of the Court of Appeal Rules had expired against the respondents

Holding

It had not, because the respondents applied for copies of proceedings in time and the registry never formally indicated the copies were ready for collection

Reasoning

The Notice of Appeal was timeously filed and the letter bespeaking copies was written and served in time on 30th May 2007. The court found no formal response from the registry was ever issued. Although the respondents should have sent reminders and visited the registry, the duty to prepare and supply the copies remains the registry's. Punishing a party for delay caused by the registry's failure to supply copies would be unfair and would amount to the height of injustice.

p. 4
02

Whether indolence and failure to follow up on the registry justified deeming the Notice of Appeal withdrawn

Holding

No; reminders and visits are desirable to keep the registry on its toes, but they are not a precondition to being excused where the registry has not communicated readiness of the copies

Reasoning

The court accepted that the respondents should have sent written reminders and made registry visits, but held that such steps merely serve to remind the registry of its duty. Because the applicant conceded there was no formal response from the registry, and the respondents had partially obtained proceedings through follow-up, the delay was attributable to the registry and the deeming order could not issue.

p. 3
03

Relevance of the three authorities cited by the applicant

Holding

All three were distinguished as factually inapposite

Reasoning

In Allan Oduor Osoro the copies and certificate of delay had been availed but counsel simply failed to prepare the record; in Abdi Nassir Nuh the complaint concerned a defective record lacking primary documents; James Ogendi was a High Court decision under the Civil Procedure Rules, not this Court's Rules. None concerned a case where copies applied for were never supplied and no communication of readiness was ever issued, as here.

p. 4

Legal principles established

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  • Where a party has timeously applied for certified copies of proceedings and judgment and the court registry has never formally responded that the copies are ready for collection, that party cannot be condemned for failure to lodge the record of appeal within the prescribed time
  • The duty to prepare and supply typed copies of proceedings rests on the court registry, and a litigant cannot be punished for inordinate delay attributable to the registry's failure to supply the copies despite reminders and follow-up
  • A litigant who has applied for copies of proceedings has no executive power over the court registry and must in practice accept that the registry has its own system of work which it must honour

Court orders

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  1. 1.The Notice of Motion dated 31st March 2014 seeking to mark the Notice of Appeal dated 23rd May 2007 as withdrawn is dismissed
  2. 2.The applicants to pay the respondents' costs of the application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
On appeal from
High Court of Kenya at Nairobi (from Kisii H.C.C. No. 52 of 2001)
Kisii H.C.C. No. 52 of 2001
Jurisdiction invoked
Inherent jurisdiction under Sections 3A and 3B of the Appellate Jurisdiction Act and the Court of Appeal Rules (application to deem a Notice of Appeal withdrawn under Rule 84 regime of the Court of Appeal Rules)

Relief refused

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Order marking/deeming the Notice of Appeal dated 23rd May 2007 as withdrawn

Without formal communication from the court registry that the copies of proceedings applied for were ready for collection, the respondents cannot in law be condemned for the delay

p. 3

Discharge/variation of the stay of execution granted on 3rd July 2007 in Civil Application No. 141 'B' of 2007

It was consequential on prayer (1), which was refused; the application was dismissed in its entirety

p. 4

Costs

Application dismissed with costs to the respondents.

Quotable passages

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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 absence of any reply from the Deputy Registrar as to whether certified or uncertified copies of proceedings and judgment are available or not, it would be the height of injustice to condemn the respondents
p. 4Rule 84 - failure to institute appeal - registry default
without a formal communication from the court registry informing the respondents that the copies of proceedings they applied for are ready for collection, the respondents cannot in law be condemned and the Notice of Appeal timeously filed be deemed as withdrawn
p. 3Preconditions to deeming a Notice of Appeal withdrawn
The party that has applied for such copies has no executive powers on the Court's Registry and thus while agitating the registry to act quickly and supply the copies, must in practice accept that the registry has its own system of work which it must honour
p. 3Allocation of responsibility for delay in supply of proceedings
this application cannot succeed. It is dismissed with costs to the respondents.
p. 4Disposition

Issues in the judgment

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minor

The coram heading and the certificate of service spell the third judge's name inconsistently ('KANTAI' in the coram, 'S. ole KANTAI' in the signature block); the panel and judgeOpinions fields adopt the fuller signature form

minor

The judgment states the application was 'dismissed with costs to the respondents' while prayer 4 of the applicant's motion sought costs 'be borne by the Respondents' - a normal outcome mismatch, recorded here for completeness

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, "Rodgers Abisai T/A Abisai & Company Advocates v Wachira Waruru & another [2014] KECA 378 (KLR)", Case Analysis (2014). Civil Application No. 19 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/378/eng@2014-09-19

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