Kabuito Contractors Limited v Attorney General [2020] eKLR Case Summary

Court
Court of Appeal at Nairobi
Category
Civil
Judge(s)
Ouko (P), Musinga, Gatembu (JJ.A.)
Judgment Date
October 23, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3

Case Brief: Kabuito Contractors Limited v Attorney General [2020] eKLR


1. Case Information:
- Name of the Case: Kabuito Contractors Limited v. The Hon. Attorney General
- Case Number: Civil Application No. 638 of 2019
- Court: Court of Appeal at Nairobi
- Date Delivered: 23rd October 2020
- Category of Law: Civil
- Judge(s): Ouko (P), Musinga, Gatembu (JJ.A.)
- Country: Kenya

2. Questions Presented:
The central legal issue in this case is whether the appeal filed by the Hon. Attorney General was lodged within the permissible time frame as stipulated by Rule 82 of the Court of Appeal Rules. Specifically, the court must determine if the notice of appeal and the record of appeal were filed in compliance with the rules governing the timing and service of such documents.

3. Facts of the Case:
Kabuito Contractors Limited (the applicant) initiated a civil suit against the Hon. Attorney General (the respondent) seeking judgment for Ksh. 1,122,668,596.71, along with interest and costs, concerning a contract for emergency road repairs in Nairobi after damage caused by El Niño rains. The High Court, presided by J.K. Sergon, ruled in favor of the applicant, awarding Ksh. 3,170,908,263.25 plus interest and costs. The respondent filed a notice of appeal and a record of appeal more than a year later, prompting the applicant to seek to strike out the appeal on grounds of procedural non-compliance.

4. Procedural History:
After the High Court's judgment on 25th May 2018, the respondent filed a notice of appeal on 28th May 2018. The applicant contended that the record of appeal was filed on 19th December 2019, significantly beyond the 60-day limit set by Rule 82. The applicant claimed that the respondent failed to adhere to the procedural requirements, including timely service of necessary documents. The respondent countered this by asserting compliance and citing difficulties in retrieving court documents due to a missing file.

5. Analysis:
- Rules: The relevant statute is Rule 82 of the Court of Appeal Rules, which requires that an appeal must be filed within 60 days of lodging a notice of appeal, with provisions for excluding time taken to prepare court proceedings if a request for such proceedings is made within 30 days of the judgment.
- Case Law: The court referenced the case of *Daniel Ng’ang’a Kanyi V. Sophinaf Company Ltd & Another*, where it was established that a certificate of delay from the court is prima facie evidence of the time taken for preparation of proceedings. The court also emphasized the necessity of compliance with procedural rules for lodging appeals.
- Application: The court found that the respondent had indeed filed a request for proceedings on 28th May 2018, which was acknowledged by the applicant's advocates. The court noted that the delays in filing the record of appeal were primarily due to the administrative issues at the High Court, as confirmed by the certificate of delay. Consequently, the court ruled that the appeal was timely filed, as the respondent acted within the permissible time frame after collecting the necessary proceedings.

6. Conclusion:
The Court of Appeal dismissed the applicant's application to strike out the appeal, determining that the respondent had complied with the procedural requirements. The decision underscored the importance of the certificate of delay as a valid justification for extending the time for filing an appeal and highlighted the need for parties to adhere to procedural rules.

7. Dissent:
There were no dissenting opinions noted in the ruling. All judges concurred with the decision to dismiss the application.

8. Summary:
The Court of Appeal ruled in favor of the Hon. Attorney General, confirming that the appeal was filed within the appropriate time frame despite the delays attributed to the court's administrative processes. This case reinforces the significance of procedural compliance and the use of certificates of delay in the appellate process, ensuring that litigants are not penalized for court inefficiencies.

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