Erastus Onyango Nyamori v County Government Of Migori & another [2016] KECA 513 (KLR)
The bottom line
#Kenya's Court of Appeal ruled you cannot strike out an appeal for delay if the court registry never issued the certified proceedings and certificate of delay the appellant needs.
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- 1.Whether the Notice of Appeal dated 17th December 2014 should be struck out as having been deemed withdrawn under Rule 83 for failure to file the record of appeal within the prescribed time
- 2.Whether the stay orders issued by the Court (Maraga, Ouko & Ole Kantai JJA) on 23rd April 2015 should be lifted
- 3.Whether the respondents had been enabled to compute and file the record of appeal given the state of compliance with Rule 82 by the Deputy Registrar
Key legal issues
#Effect of non-compliance by the registry with Rule 82 on an application to strike out a Notice of Appeal under Rule 83
The application is premature where the Deputy Registrar has neither communicated with nor supplied the intended appellants with certified proceedings or a certificate of delay; the respondents are in no position to file the intended appeal until Rule 82 is complied with
Rule 82 excludes from the computation of time for instituting an appeal the period certified by the registrar as required for preparing and delivering copies of the proceedings to the appellant. Having duly requested the proceedings, the respondents were entitled to the certified copies and to a certificate of delay. Since the registry had furnished neither, the respondents could not be faulted for not filing the record, and the fact that the applicant had obtained the proceedings through his own efforts did not justify striking out the Notice of Appeal.
Whether the applicant's own possession of certified proceedings entitled him to have the Notice of Appeal struck out
No; it is not sufficient for the applicant to contend that since he obtained the proceedings the Notice of Appeal should be struck out, where the registry has not communicated readiness or issued a certificate of delay to the other party
The certified proceedings and ruling had been supplied to the applicant without any letter forwarding them to either party, and no certificate of delay was made available. The applicant conceded he had no communication from the Deputy Registrar forwarding the typed proceedings. Equity and the scheme of the Rules required the registry's obligations to the intended appellants to be discharged before time could be held to have lapsed against them.
Legal principles established
#- An intended appellant is entitled, upon requesting proceedings, to receive the certified proceedings from the registry and a certificate of delay specifying the period taken to prepare them, and time for filing the record of appeal cannot properly run against an appellant until Rule 82 is complied with by the Deputy Registrar
- An application under Rules 83 and 84 to strike out a Notice of Appeal is premature where the Deputy Registrar has not supplied the certified copies of the proceedings and the certificate of delay to the intended appellant
Court orders
#- 1.The application dated 24th November 2015 is dismissed
- 2.Costs of the application are awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Industrial Court (Employment and Labour Relations Court)
- Cause No. 308 of 2014
- Jurisdiction invoked
- Rules 83 and 84 of the Court of Appeal Rules, 2010 (application to strike out a Notice of Appeal) in the context of an intended appeal from Industrial Court Cause No. 308 of 2014
Relief refused
#Striking out of the Notice of Appeal and lifting of the stay orders of 23rd April 2015
The Deputy Registrar had not complied with Rule 82 by supplying certified proceedings and a certificate of delay to the respondents, so they could not yet file the record of appeal; the application was premature
Alternative order compelling the respondents to resume payment of the applicant's withheld salaries as ordered by the Industrial Court
Not granted; the court found the entire application to lack merit
Costs
The application was dismissed with costs to the respondents
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.
We take the view that until such time as Rule 82 of this Court's Rules have been complied with, this application is premature and unjustified. We find that it lacks in merit, and we dismiss it with costs to the respondents.
not only were the respondents entitled to receive the certified proceedings from the Registry, they were also entitled to receive a certificate of delay specifying the period taken to prepare the proceedings, so as to enable them compute the time taken for filing the intended appeal
It is not sufficient for the applicant to contend that since he has obtained the proceedings, the Notice of Appeal should be struck out, yet the Deputy Registrar has neither communicated with nor supplied the respondents with the certified copies of the proceedings
there shall in computing the time within which the appeal is to be instituted, be excluded such time as may be certified by the registrar of the superior court as having been required for the preparation and delivery to the appellant of such copy
Issues in the judgment
#The body of the ruling states the respondents' earlier strike-out application was 'dismissed by this Court on 25th September 2015' but identifies it as 'Civil Application 308 of 2014', a number identical to the underlying Industrial Court cause, suggesting a typographical error in the cause number
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Erastus Onyango Nyamori v County Government Of Migori & another [2016] KECA 513 (KLR)", Case Analysis (2016). Civil Application No. 64 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/513/eng@2016-06-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.