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Court of AppealDismissedCivil Application No. 64 of 2015

Erastus Onyango Nyamori v County Government Of Migori & another [2016] KECA 513 (KLR)

Court of Appeal of Kenya
2 June 2016
1,474 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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In this interlocutory ruling, a three-judge bench of the Court of Appeal at Kisumu (Maraga, Musinga and Murgor JJA) dealt with an application by Erastus Onyango Nyamori under Rules 83 and 84 of the Court of Appeal Rules, 2010, seeking to strike out the County Government of Migori's Notice of Appeal against an Industrial Court decision of 3rd December 2014 in Cause No. 308 of 2014, to lift stay orders issued on 23rd April 2015, and in the alternative to compel resumption of payment of his withheld salaries. The applicant argued the intended appeal had been overtaken by events because 60 days had elapsed since certified proceedings became available in October 2015 without the record of appeal being filed. The respondents, through counsel Mr. Sagana, showed they had repeatedly requested proceedings and a certificate of delay, but the registry had neither communicated with them nor issued a certificate of delay, while the applicant had inexplicably obtained the certified proceedings himself. The court held that under Rule 82, time for instituting an appeal excludes the period required for preparing and delivering copies of proceedings, and that an intending appellant is entitled to both the certified proceedings and a certificate of delay from the registry. Since the Deputy Registrar had not discharged these obligations, the respondents were in no position to file the appeal, and the application was premature and unjustified. The application was dismissed in its entirety, including the alternative salary claim, with costs to the respondents. This ruling binds subordinate courts and registries in that a strike-out under Rule 83 cannot succeed where Rule 82 remains uncomplied with by the registry.

Questions the Court framed

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

  1. 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. 2.Whether the stay orders issued by the Court (Maraga, Ouko & Ole Kantai JJA) on 23rd April 2015 should be lifted
  3. 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

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01

Effect of non-compliance by the registry with Rule 82 on an application to strike out a Notice of Appeal under Rule 83

Holding

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

Reasoning

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.

p. 3
02

Whether the applicant's own possession of certified proceedings entitled him to have the Notice of Appeal struck out

Holding

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

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The application dated 24th November 2015 is dismissed
  2. 2.Costs of the application are awarded to the respondents

The bench

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

majority
majority
majority
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

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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

p. 3

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

p. 3

Costs

The application was 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.

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.
p. 3Final orders - dismissal of the application with costs
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
p. 3Entitlement to certificate of delay and certified proceedings under Rule 82
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
p. 3Prematurity of strike-out application where registry has not served the intended appellants
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
p. 3Text of Rule 82 on exclusion of time taken to prepare proceedings

Issues in the judgment

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minor

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

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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, "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.