Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Application No. 49 of 2018

Geoffrey Matoke v Moraa Masare & 4 others [2019] KECA 160 (KLR)

Court of Appeal
20 November 2019
1,915 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal killed a stalled appeal because its 60-day filing deadline passed, confirming that court registry letters carry strong official weight in Kenya.

What this practically means

#

Executive summary

#
This is a unanimous ruling of a three-judge bench of the Court of Appeal at Kisumu (Asike-Makhandia, Kiage and Otieno-Odek JJA) delivered on 20th November 2019. Geoffrey Matoke moved under Rules 42 and 83 of the Court of Appeal Rules seeking an order deeming the respondents' Notice of Appeal dated 25th June 2013, filed in Kisii HCCA No. 44 of 2013, as withdrawn for failure to institute the appeal within the prescribed period. The respondents' counsel conceded lodging the notice but denied receiving certified copies of typed proceedings, disputing a Deputy Registrar's letter of 31st July 2017 stating that the appellant's counsel was furnished with a certified copy of typed proceedings and judgment on 7th July 2017. The court held that a registry letter is an official record of a public office whose sanctity cannot be doubted absent contrary evidence, and found that the proceedings were supplied on 7th July 2017. Applying the Mae Properties authority on Rules 82 and 83, and noting that there was no certificate of delay and no application for extension of time, the court found that sixty days had lapsed without the record of appeal being lodged. It allowed the motion, deemed the Notice of Appeal as withdrawn under Rule 83, and ordered the respondents to pay the costs of the application. The ruling binds subordinate courts and High Court registries on the operation of Rules 82 and 83 and the evidential weight of registry records.

Questions the Court framed

#

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

  1. 1.Whether the respondents' counsel was supplied with certified copies of typed proceedings and judgment on 7th July 2017 as stated in the Deputy Registrar's letter dated 31st July 2017
  2. 2.Whether the Notice of Appeal dated 25th June 2013 should be deemed as withdrawn under Rule 83 for failure to institute the appeal within the appointed time

Key legal issues

#
01

Effect of default in instituting an appeal within the appointed time under Rule 83

Holding

A notice of appeal that has not been converted into an appeal within the 60-day period (as extended by the proviso to Rule 82(1)) dies a natural death and may be deemed withdrawn on the court's own motion or on a party's application under Rule 83, with the party in default liable to pay costs

Reasoning

Rule 82(1) requires institution of an appeal within 60 days of the notice of appeal, with exclusion of time certified by the registrar where proceedings were applied for. Rule 83 deems the notice withdrawn on default, and the court may so order on its own motion or on application. In this case there was no certificate of delay and no application for extension of time, so 60 days had plainly lapsed since the proceedings were supplied on 7th July 2017.

p. 2
02

Evidential weight of a registry letter confirming supply of typed proceedings

Holding

The Deputy Registrar's letter confirming that the appellant's counsel was furnished with certified copies of typed proceedings and judgment on 7th July 2017 was accepted as conclusive in the absence of evidence to the contrary, fixing the commencement of the 60-day period

Reasoning

The respondents denied receiving certified copies of proceedings and disputed the truth of the registry's letter. The court held that a letter from the court registry is an official record of a public office whose sanctity cannot be doubted, and since the respondents placed no material before the court to challenge it, the finding of supply on 7th July 2017 followed.

p. 3

Legal principles established

#
  • Where no application for typed proceedings is made, an appeal must be instituted strictly within 60 days of lodging the Notice of Appeal; failure results in the notice being deemed withdrawn under Rule 83
  • A party seeking to have a notice of appeal deemed withdrawn need only show that the 60 appointed days have elapsed without an appeal being lodged; absent compelling reasons in the interests of justice, the order should follow
  • A letter from the court registry is an official record of a public office whose sanctity cannot be doubted absent evidence to the contrary

Court orders

#
  1. 1.The Notice of Appeal dated 25th June 2013 filed in Kisii HCCA No. 44 of 2013 is deemed as having been withdrawn pursuant to Rule 83
  2. 2.The respondents shall pay the costs of the application

The bench

#

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

majority
majority
majority
On appeal from
High Court at Kisii
Kisii HCCA No. 44 of 2013
Jurisdiction invoked
Rules 42, 82(1) and 83 of the Court of Appeal Rules

Relief refused

#

Respondents' contention that they never received certified copies of typed proceedings

No material was placed before the Court to doubt the veracity of the Deputy Registrar's official letter; the letter is an official record of a public office

p. 3

Costs

The respondents shall pay the costs of this application.

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.

Pursuant to the provisions of Rule 83 of the rules of this Court, we hereby deem the Notice of Appeal dated 25 th June 2013 filed in Kisii HCCA of 44 of 2013 as having been withdrawn. The respondents shall pay the costs of this application.
p. 3Final orders - deeming of notice of appeal as withdrawn
The respondents have not placed any material before us that can lead us to doubt the veracity of the contents of the letter dated 31 st July 2017. In the absence of evidence to the contrary, we find that the respondents’ counsel was supplied with a certified copy of typed proceedings and judgment on 7 th July 2017.
p. 3Sanctity of court records
It is thus manifest that sixty days have lapsed since the Notice of Appeal was lodged and no record of appeal has been filed.
p. 3Default under Rule 82 and 83

Issues in the judgment

#
minor

The coram line prints the first judge's surname as 'ASEKE-MAKHANDIA' while the signature block reads 'ASIKE-MAKHANDIA'

minor

The judgment refers to Kisii High Court Civil Appeal No. 44 of 2013 in places but as 'No. 44 of 2010' and 'HCCA of 44 of 2013' elsewhere

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Geoffrey Matoke v Moraa Masare & 4 others [2019] KECA 160 (KLR)", Case Analysis (2019). Civil Application No. 49 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/160/eng@2019-11-20

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