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Court of AppealDismissedCivil Application No. 83 of 2014

Shadrack Abraham Kisongoch v Kenya Airports Authority [2015] KECA 65 (KLR)

Court of Appeal of Kenya
14 May 2015
448 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 appeal deadlines run from when court proceedings are delivered, not when the judgment was issued, so the appeal survived.

What this practically means

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Executive summary

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This was an interlocutory application, not a full appeal, in which the applicant sought to strike out the respondent Kenya Airports Authority's notice of appeal and the record of appeal arising from the Industrial Court judgment of Wasilwa, J. dated 17th September 2014 in Industrial Cause No. 20 of 2014. The applicant, invoking Rules 42(1), 43(1), 83 and 84 of the Court of Appeal Rules, argued that the record of appeal was filed out of the prescribed period without leave. The Court of Appeal (Maraga, Azangalala and Kantai JJ.A) held that under the proviso to Rule 82(1) read with sub-rule (2), where a letter bespeaking proceedings is filed within thirty days of the decision and served on the respondent, time for filing the record of appeal runs from delivery of the proceedings rather than from the date of the decision. The certificate of delay showed proceedings were delivered to the respondent's counsel on 19th November 2014; excluding the 2014 Christmas vacation, the last day for filing was 9th February 2015, yet the record was lodged on 21st January 2015. Counsel for the applicant conceded that if time ran from 19th November 2014, the record was filed in time. The court therefore found no merit in the application, dismissed it, and awarded costs to the respondent. The ruling establishes the binding principle that delivery of proceedings, not the date of decision, starts time running where the bespeaking letter is timely filed and served.

Questions the Court framed

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

  1. 1.Whether the record of appeal was filed out of the prescribed period without leave of court, given that time for filing runs from delivery of the proceedings under the proviso to Rule 82(1) of the Court of Appeal Rules

Key legal issues

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Computation of the period for filing a record of appeal under Rule 82 of the Court of Appeal Rules where a certificate of delay shows late delivery of proceedings

Holding

Time starts to run from delivery of the proceedings; excluding the Christmas vacation, the record filed on 21st January 2015 was within time

Reasoning

The proviso to Rule 82(1) read with sub-rule (2) applies where the letter bespeaking proceedings is filed within thirty days of the decision and served, as happened here. The certificate of delay annexed to the replying affidavit showed proceedings were delivered to the respondent's counsel on 19th November 2014, so the last date for filing, excluding the 2014 Christmas vacation, was 9th February 2015. The record was filed on 21st January 2015, well within time.

p. 2

Legal principles established

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  • Where a letter bespeaking proceedings is filed and served within thirty days of the decision appealed from, time for filing the record of appeal runs from the date of delivery of the proceedings, not from the date of the decision.

Court orders

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  1. 1.The application to strike out the respondent's notice of appeal is dismissed

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Kisumu, Industrial Court
Industrial Cause No. 20 of 2014
Jurisdiction invoked
Rules 42(1), 43(1), 83 and 84 of the Court of Appeal Rules

Relief refused

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Striking out of the respondent's notice of appeal and record of appeal

The record of appeal was filed within time, as time began to run from delivery of the proceedings on 19th November 2014

p. 2

Costs

Application dismissed with costs to the respondent

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.

for purposes of filing the record of appeal, time starts to run from the date of "delivery" of the proceedings.
p. 2Computation of time under Rule 82(1) Court of Appeal Rules
Consequently we find no merit in this application and we accordingly dismiss it with costs.
p. 2Final orders

Issues in the judgment

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minor

The notice of appeal is dated inconsistently within the judgment - the cause title states it is dated 23rd November 2014 while paragraph 1 states it is dated 23rd September 2014

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, "Shadrack Abraham Kisongoch v Kenya Airports Authority [2015] KECA 65 (KLR)", Case Analysis (2015). Civil Application No. 83 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/65/eng@2015-05-14

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