Wakilii

Shaw v Olivier (Civil Appeal No. 15 of 1942.)

East African Court of Appeal · [1943] EACA 79 · 1943 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to appeal out of time following refusal of initial appeal on grounds of late filing
Decision
Leave to appeal out of time granted; matter may proceed to substantive appeal

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court granted leave to appeal out of time where a subsequent certificate from the Resident Magistrate established that two days were requisite for preparation and delivery of documents, and excluding those two days the appellant would have been in time. The case was distinguished from Hasham Lalji v Kotecha on the basis that here there was evidence showing the appellant would have been in time if the proper certificate had been obtained initially.

Outcome

Leave to appeal out of time granted; matter may proceed to substantive appeal

Facts

The appellant sought to appeal from an order of the Resident Magistrate, Eldoret. The initial appeal was refused on the ground that a certificate dated 1 August 1942 did not properly certify the time requisite for preparation and delivery of documents as required by section 65(2) of the Civil Procedure Ordinance 1924, following the decision in Hasham Lalji v Kotecha. The appellant subsequently obtained a further certificate dated 27 February 1943 from the Resident Magistrate which clarified that two days were requisite for preparation and certification of the order. The order was less than 100 words and the proceedings less than three folios. The certificate stated that the two days were required for preparation and certification of the order because of other work in the office, and that in any case preparation and certification would have required one day. The appellant then applied for leave to appeal out of time.

Issues

  1. Whether the appellant should be granted leave to appeal out of time where a subsequent certificate from the Resident Magistrate clarified the time requisite for preparation and delivery of documents under section 65(2) of the Civil Procedure Ordinance 1924.

Orders

  • Leave to appeal out of time granted.
  • Respondent to have costs of the application in any event.

Rules and key headnotes

Civil Procedure — Appeals — Time Limits — Certification of Time for Document Preparation
Where a Resident Magistrate's certificate under section 65(2) of the Civil Procedure Ordinance 1924 establishes the time requisite for preparation and delivery of documents, and excluding that certified time the appellant would have been within the 30-day appeal period, leave to appeal out of time may be granted.
Civil Procedure — Appeals — Certification Requirements — Duty of Appellant
It is the duty of an appellant to ensure that a full and requisite certificate is obtained under section 65(2) of the Civil Procedure Code, and failure to do so may result in an adverse costs order even where leave to appeal out of time is subsequently granted.
Civil Procedure — Appeals — Distinguishing Precedent — Hasham Lalji v Kotecha
The principle in Hasham Lalji v Kotecha that an improper certificate under section 65(2) cannot exclude time from the appeal period applies where there is no evidence that the appellant would have been in time with a proper certificate, but may be distinguished where subsequent evidence establishes that the appellant would have been within time.

Legislation cited (1)

  • Civil Procedure Ordinance 1924 s.65(2)

Cases cited (1)

  • Hasham Lalji v Kotecha (1940) 19 KLR 20

Full judgment

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Shaw v Olivier (Civil Appeal No. 15 of 1942.) [1943] EACA 79 (1 January 1943)
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.