SAFE RENTALS LIMITED v AFRICAN SAFARI CLUB LTD [2011] eKLR

Key Facts

Transaction Type

Issues

• The court evaluated the validity of the certificate of delay dated 23rd July 2010, which the appellant claimed was the correct one. The respondent highlighted the presence of a conflicting certificate dated 31st May 2010, raising concerns about the appellant's lack of candor. The court concluded the 23rd July 2010 certificate was intended to mislead and dismissed the appellant's application to expunge the earlier certificate, deeming the appeal incompetent.
• The court considered whether Civil Appeal No. 225 of 2010, filed by African Safari Club Limited on 30th July 2010, was competent as it exceeded the 60-day deadline for filing a record of appeal. The respondent argued the appeal was out of time, citing the absence of valid certificates of delay, while the appellant claimed reliance on a later certificate of delay dated 23rd July 2010. The court examined the validity of two conflicting certificates of delay and the appellant's explanation for their existence.

Holdings

• The court dismissed the appellant's application to expunge the certificate of delay dated 31st May 2010 and to file a supplementary record of appeal. The application was dismissed with costs to the respondent due to the appellant's failure to provide a reasonable explanation for possessing two conflicting certificates of delay, which cast doubt on their credibility and intent to mislead the court.
• The appeal was struck out as incompetent for being filed beyond the 60-day period stipulated in the Court of Appeal Rules, without valid leave. The certificate of delay dated 23rd July 2010 is invalid, leading to the appeal being dismissed for being out of time. The court emphasized that it will not assist parties seeking to mislead or abuse procedural processes.

Remedies

• The application for an order expunging the certificate of delay and granting leave to file a supplementary record is dismissed with costs to the respondent.
• Civil Appeal No. 225 of 2010 is struck out with costs both of the motion dated 25th August 2010 and of the appeal to the respondent.

Legal Principles

• The court highlighted the importance of parties acting in good faith and not seeking to mislead the court. The presence of a certificate of delay dated 23rd July 2010 was deemed to cast aspersions on the appellant's integrity, as it appeared to be a deliberate attempt to mislead.
• The court emphasized that in civil proceedings, when a fact is especially within the knowledge of a party, the burden of proving or disproving that fact lies with that party, as per Section 112 of the Evidence Act (Cap 80). The appellant was required to explain the presence of two conflicting certificates of delay.

Cited Statute

• Court of Appeal Rules
• Evidence Act
• Constitution of Kenya

Judge Name

• P.K. Tunoi
• S.E.O. Bosire
• Alnashir Visram

Passage Text

• However a careful consideration of the matter reveals that the certificate of 23rd July 2010 was meant to mislead the court. Its presence casts aspersions on the ubarrima fides of the appellant and its legal advisers.
• In view of the conclusion we have come to we are disinclined to allow the appellant's aforesaid application. It is dismissed with costs to the respondent. In the event the appellant's aforesaid application must succeed with the result that we hold that the certificate of delay dated 23rd July 2010 is invalid which therefore means, that Civil Appeal No. 225 of 2010 was filed out of time without leave of the court and is therefore incompetent. Consequently it is struck out with costs both of the motion dated 25th August 2010 and of the appeal to the respondent in the appeal.
• "In Civil Proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him."