Wakilii

Lalji v Kotecha (Civil Appeal No. 11 of 1940)

East African Court of Appeal · [1940] EACA 34 · 1940 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Resident Magistrate's Court, Eldoret, with preliminary objection that appeal was filed out of time
Decision
Appeal dismissed for being out of time

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that the appeal was out of time because the Resident Magistrate's certificate did not certify any particular time as requisite for preparation and delivery of the decree copy, as required by section 65(2) of the Civil Procedure Ordinance. The appellant failed to demonstrate special circumstances justifying leave to appeal out of time, as he could have obtained the certified decree copy and filed his memorandum of appeal within the prescribed thirty days. Leave to appeal was refused and the appeal dismissed with costs.

Outcome

Appeal dismissed for being out of time

Facts

The appellant sought to appeal from a judgment and decree of the Resident Magistrate's Court, Eldoret, dated 13 December 1939. On 14 December 1939, the appellant's advocate applied for uncertified copies of the judgment and decree, which were delivered on 20 January 1940. On 8 February 1940, the advocate applied for certification of the judgment copy as a true copy, which was done and delivered on 10 February 1940. The appeal was lodged on 13 February 1940, sixty-two days after the judgment. The respondent raised a preliminary objection that the appeal was out of time. The appellant applied for special leave to appeal out of time, arguing that his advocate was not engaged in the lower court proceedings, desired a copy of the proceedings to advise on appeal, applied for copies the day after judgment, time was taken consulting other advocates, and there was difficulty reading the magistrate's handwriting.

Issues

  1. Whether the appeal was filed within the prescribed time limit under section 65(2) of the Civil Procedure Ordinance 1924.
  2. Whether the certificate issued by the Resident Magistrate complied with the statutory requirement to certify time requisite for preparation and delivery of a copy of the decree.
  3. Whether special cause existed to grant leave to appeal out of time.

Orders

  • Leave to appeal out of time refused.
  • Appeal dismissed with costs.

Rules and key headnotes

Civil Procedure — Appeals — Time Limits — Certification of Time for Obtaining Decree Copy
A certificate issued under section 65(2) of the Civil Procedure Ordinance 1924 must certify a particular time as having been requisite for preparation and delivery of a copy of the decree to enable exclusion of that time from the thirty-day appeal period; a certificate that merely recites dates of application and delivery without certifying the time as requisite does not comply with the statutory requirement.
Civil Procedure — Appeals — Time Limits — Duty of Diligence
It is not sufficient for a party to apply for a copy of the decree and then rest content if delay follows in obtaining it; where delay is avoidable or within the control of the applicant, such time cannot be excluded from the prescribed appeal period.
Civil Procedure — Appeals — Leave to Appeal Out of Time — Special Circumstances
Leave to appeal out of time should not be granted except in very special circumstances; delay caused by seeking counsel's opinion in another jurisdiction, difficulty reading handwriting, or consulting multiple advocates does not constitute special circumstances where the appellant could have obtained the certified decree copy and filed the memorandum of appeal within the prescribed time.
Civil Procedure — Appeals — Requirements for Filing — Memorandum and Certified Decree
Under Order 39 rule 1 of the Civil Procedure Rules 1927, an appellant need only file a memorandum of appeal signed by the appellant or his advocate and a certified copy of the decree or order appealed from; a copy of the entire record of proceedings is not necessary to file an appeal or formulate grounds of appeal.

Legislation cited (2)

  • Civil Procedure Ordinance 1924 s.65(2)
  • Civil Procedure Rules 1927 Order XXXIX r.1

Cases cited (2)

  • Michael Kaliambetsos v T Leslie Hanmer & S Bertram Smith (4 EACA 49)
  • Collins v. Vestry of Paddington, 8 Q.B.D. 368

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Lalji v Kotecha (Civil Appeal No. 11 of 1940) [1940] EACA 34 (1 January 1940)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.