Mombasa Water Products Limited v Nic Bank Limited & 2 others (Civil

Application E051 of 2021) [2022] KECA 523 (KLR) (6 May 2022) (Ruling)
Neutral citation: [2022] KECA 523 (KLR)

REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT MOMBASA
CIVIL APPLICATION E051 OF 2021
SG KAIRU, P NYAMWEYA & JW LESSIT, JJA
MAY 6, 2022

BETWEEN
MOMBASA WATER PRODUCTS LIMITED ....................................... APPLICANT

AND
NIC BANK LIMITED .................................................................... 1ST RESPONDENT
AUCKLAND AGENCIES ............................................................. 2ND RESPONDENT
NDUTUMI AGENCIES ................................................................ 3RD RESPONDENT

(Being an Application to withdraw and/or deem the Notice of Appeal dated 29th April 2020
and filed on 4th May 2020 against the Judgment of the High Court at Mombasa (Hon.
Justice P.J. Otieno) delivered on 23rd April 2020 in High Court Civil Appeal no 149 of 2019)

RULING

1. The application before this Court is a Notice of Motion dated 6th July 2021, and is brought pursuant
to Rule 82 and Rule 83 of the Court of Appeal Rules, 2010. The Applicant herein is seeking to have the
Notice of Appeal dated 29th April 2020 and lodged on 4th May 2020 against the judgment of the High
Court at Mombasa (P. J. Otieno J.) delivered on 23rd April 2020 in NIC Bank Limited & 2 others v
Mombasa Water Products Limited - HCCA No. 149 of 2019 deemed as withdrawn, and that the costs
of the application be provided for.

2. The application is supported by an adavit sworn on 6th July 2021 by Joseph Mbugua Gichanga, the
Applicant’s Managing Director, who deponed that the 1st Respondent herein being aggrieved by the
subject judgment delivered on 23rd April 2020 led the Notice of Appeal dated 29th April 2020, but the
record of appeal is yet to be led to date. Furthermore, that a certicate of delay was issued conrming
that the certied copies of the proceedings were ready by 5th May 2020. Lastly, that the 1st Respondent
having failed to le and serve the Record of Appeal within the mandatory time stipulated by the law

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 under rule 82 (1) of the Court of Appeal Rules, 2010, any such record intended to be led would be
incompetent.

3. It is the Applicant’s view that this is a proper case for the Court to deem the Notice of Appeal led
by the 1st Respondent as withdrawn, as the Respondents have been enjoying stay of execution orders
from the High Court which is anchored on an alleged appeal to this Court and the Applicant is greatly
prejudiced as it is unlawfully being denied a chance to enjoy the fruits of its judgment. The Applicant
annexed copies of the judgment dated 13th April 2020 and delivered on 23rd April 2020, the Notice of
Appeal dated 29th April 2020 and lodged on 5th May 2020, A Certicate of Delay dated 5th May 2020
and issued on 17th February 2021, and of the typed proceedings in High Court Civil Appeal No 149
of 2019.

4. The 1st Respondent in response led a Replying Adavit sworn on 9th September 2021 by Stephen
Atenya, its Senior Legal Counsel, who detailed the proceedings leading to the impugned judgment
delivered by the High Court. The 1st Respondent conrmed that being aggrieved and dissatised with
the judgment, it lodged an appeal by ling a Notice of Appeal on 4th May 2020, and on 30th April 2020
requested for typed proceedings relating thereto in order to enable them lodge the record of Appeal.
The 1st Respondent’s case is that it followed up on the status of the typed proceedings and was informed
that the same was not ready because of frequent movement of the le for the hearing of and rulings on
ve applications led by the parties in the High Court after delivery of the judgment.

5. Further, that it was yet to be notied whether the typed proceedings are ready for collection as is the
standard practice of the High Court and requirement under the rules. The 1st Respondent disputed the
authenticity of the certicate of delay dated 17th February 2021 exhibited by the Applicant, and averred
that the said certicate was issued under unclear circumstances without a formal request or payment of
the requisite Court fees, and whilst the Court le was in the custody of the Deputy Registrar. The 1st
Respondent also asserted that since there was no receipt conrming payment for the proceedings, and
the Respondents advocates were yet to be notied by the Court that the typed proceedings are ready,
the authenticity of the proceedings attached to the Applicant’s application cannot be ascertained.

6. Additionally, that the Notice of Appeal was led in Court on 4th May 2020 and endorsed by the Deputy
Registrar of the Court on 5th May 2020, conrming that the Court le in respect of the matter was not
at the Court’s typing pool on 4th and 5th May 2020 as it would have been impossible to le the Notice
of Appeal and have the same endorsed without the Court le. Further, that 1st May 2020 was a public
holiday and 2nd and 3rd May 2020 fell on a weekend, and the Court le was therefore at the typing pool
only for 1 day on 30th April 2020, which was the day the typed proceedings were requested for.

7. Further, that the 1st respondent’s advocates vide a letter dated 26th July 2021 to the Deputy Registrar
of the High Court enquired whether the proceedings were ready and the circumstances surrounding
the issuance of the certicate of delay relied upon by the Applicant. The said Deputy Registrar on 7th
September 2021, advised the 1st Respondent that no payment had been received by the Court for the
Certicate of delay dated 17th February 2021 and did not recognized the same. The 1st Respondent’s
position is that the Applicant is determined to defeat the intended appeal using underhand means, and
cited the incident when a ruling which was scheduled for 21st July 2020 was rescheduled to 9th July
2020 at the instance of the Applicant’s Advocate and delivered without notice to the Respondents,
resulting in dismissal of the 1st Respondent’s stay application and release of the sum held as security of
Kshs 9,112,000/- to the Applicant’s Advocates.

8. The 1st Respondent concluded that it will suer substantial loss and prejudice if the orders sought are
granted, since the Applicant will be driven away from the seat of justice through no fault of their own.

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 Further, that there will be no prejudice or loss occasioned to the Applicant which has already been paid
the decretal sum. Finally, that it will be in the interest of justice that the 1st Respondent be allowed to
exercise its constitutional right without unnecessary fetter, and that the mistakes of the Court registry
ocials which are outside its control ought not to be visited upon it.

9. We heard the application on 16th February 2022, and learned counsel Mr. Peter Omwenga canvassed
the application on behalf of the Applicant. While relying on written submissions dated 20th September
2021, Mr. Omwenga reiterated the grounds for the application, and submitted that the Deputy
Registrar certied that the proceedings were ready by 5th May 2020. Reference was made to rule 82 and
Rule 83 of the Court of Appeal Rules, 2010 and the decision in the case of Mae Properties Limited vs
Joseph Kibe & Another [2017] eKLR that the only facts required to be demonstrated are that the 60 days
appointed have elapsed without an appeal having been lodged , and that this Court has this inherent
power to make the formal order of the notice having been deemed as withdrawn under Rule 83.

10. Ms. Mburu, the learned counsel for the 1st Respondent, was also present at the hearing and asserted
that it would be a miscarriage of justice if the appeal is deemed as withdrawn because the 1st Respondent
had not refused to le the appeal. The counsel’s argument was that the 60-day period for ling an
appeal starts running when the parties are notied by the Court that the proceedings are ready for
collection, and she maintained that they were yet to be informed that the typed proceedings were ready
for collection.

11. In addition to the certicate of delay presented by the Applicant having been disputed, the counsel
pointed out that if the proceedings had been ready as indicated therein, there would have be no need
for a certicate of delay. Counsel relied on written submissions dated 9th September 2021 in which
reference was made to the decision in Maithya Lonzi vs Paul Mutuku & Kyama Paul Mutuku [1984]
eKLR where the Court found that the High Court was duty bound to inform the Applicant that
certied copies were ready.

12. It is not in dispute that under Rule 82 of the Court of Appeal Rules, an appeal shall be instituted by
lodging a memorandum of appeal and record of appeal in the appropriate registry within sixty days
of the date when the notice of appeal was lodged, unless an application for a copy of the proceedings
has been made to the trial Court, and a certicate of delay issued by the Registrar of the said Court
indicating the period for preparation and delivery of the proceedings, which period is excluded from
the computation of time..

13. Mr Omwenga urged this Court to deem the 1st Respondent’s Notice of Appeal withdrawn under Rule
83 of the Court of Appeal Rules of 2010. He relied on a copy of certicate of delay he annexed dated
5th May 2020 and issued on 17th February 2021 which indicates that the proceedings were ready for
collection on 5th May 2020, and that the period excluded from computation of time was 30th April
2020 to 5th May 2020. Therefore, according to Mr. Omwenga, the sixty days to le an appeal began to
run from 5th May 2020 and the 1st Respondent is out of time.

14. This Court indeed possesses discretion to strike out a Notice of Appeal by using the deeming
provision in Rule 83, as held in Mae Properties Limited vs Joseph Kibe & Another [2017] eKLR,
where an application to strike out a notice of appeal was led outside the 30-day limit, and this Court
nevertheless applied the deeming provision under Rule 83 to strike out the said notice. The Court in
that case reasoned as follows on the application of Rule 83;

We think that the true meaning and import of the rule is more often than not scarcely
appreciated. The rule as framed prescribes the legal consequence for non-institution of an
appeal within the 60 days appointed by the Rules of Court. Moreover, the said consequence

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 is couched in mandatory, peremptory terms: the oending party shall be deemed to have
withdrawn the appeal. It seems to us that the deeming sets in the moment the appointed
time lapses.
Essentially this is a practical rule that is intended to rid our registry of merely speculative
notices of appeal led either in knee-jerk reaction to the decision of the court below, or
led in holding mode while the party considers whether or not to lodge a substantive
appeal. Indeed, it is not uncommon and we take judicial notice of it, for such notices to be
lodged ex abundanti cautella by counsel upon the pronouncement of decisions but to await
instructions on whether or not to proceed full throttle with the appeal proper - with the
attendant risks, prospects and consequences.”

15. While we agree with the said reasoning, it is our view that the exercise of the discretion granted by Rule
83 is predicated on the existence of circumstances from which this Court can deem that the notice
of appeal has been withdrawn. If there are circumstances to the contrary, then the Court cannot so
deem. In the present application, the 1st Respondent has disputed the veracity of the certicate of delay
annexed by the Applicant, and in this respect availed a copy of a letter requesting for typed proceedings
dated 27th April 2020 and stamped as received on 30th April 2020 by the Deputy Registrar of the trial
Court, and another letter dated 27th July 2021 inquiring about the typed proceedings and the veracity
of the certicate of delay annexed by the Applicant’s advocate.

16. Rule 82 provides that the relevant documents for computing or excluding the time within which the
appeal is to be instituted, are the application for a copy of the proceedings, and the certicate by the
registrar indicating the time taken to prepare the proceedings. The 1st Respondent has provided a copy
of the application for proceedings dated 27th April 2020, and made within time. We have also perused
the copy of the certicate of delay provided by the Applicant, and note that the Applicant has not
brought any evidence of the same having been availed by the Deputy Registrar of the trial Court, nor
explained the circumstances under which it came to be in its possession.

17. It is our view that legitimate concerns regarding the authenticity of the certicate of delay provided
by the Applicant have been raised by the 1st Respondent. In addition, the 1st Respondent has denied
having received any response to its application, and provided evidence of its query to the Deputy
Registrar as regards the said certicate of delay.

18. We are therefore constrained to exercise our discretion in favour of the 1st Respondent, and to decline
the applicant’s application. The Applicant’s Notice of Motion application dated 6th July 2021 is
accordingly dismissed with costs to the 1st respondent.

19. Orders accordingly.

DATED AND DELIVERED AT MOMBASA THIS 6TH DAY OF MAY, 2022.
S. GATEMBU KAIRU (FCI Arb)
......................................
JUDGE OF APPEAL
P. NYAMWEYA
.....................................
JUDGE OF APPEAL
J. LESIIT

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......................................
JUDGE OF APPEAL
I certify that this is atrue copy of the original.
Signed
DEPUTY REGISTRAR

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