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Court of AppealStruck OutNot stated in the judgment

Murai & others v Wainaina (Civil Appeal 46 of 1977) [1978] KECA 26 (KLR)

Court of Appeal of Kenya
28 February 1978
2,050 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an entire appeal because the appellant never filed the decree—the court refused to forgive that procedural step.

What this practically means

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Executive summary

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In 1978 the Court of Appeal (Wicks CJ, Madan and Wambuzi JJA) struck out an appeal as incompetent and later gave its reasons. The respondent had obtained from the High Court (Simpson J), on an originating summons, a declaration of title by adverse possession to land at Ngerere/Thombotho in Muranga district and an order for his registration as sole proprietor. The respondent objected that the appeal was incompetent because no decree had been duly drawn and extracted. The appellants' counsel argued that the High Court decision was a judgment rather than an order, relied on the proviso to section 2 of the Civil Procedure Act deeming a judgment appealable without a formal decree, invited the court not to follow O'Dell, and alternatively sought exclusion of the decree under rule 85(3), an adjournment to file a decree, or reliance on section 3(2) of the Judicature Act. The court declined to decide whether the decision below was an order or a judgment, instead following Schweitzer v Cunningham and Kiboro v Posts & Telecommunications Corporation. It held that rule 85(1)(h) mandatorily requires a decree to be extracted and filed with the record; the right of appeal exists on judgment but must be pursued in compliance with the Rules; the decree could not be excluded; no sufficient reason for extension of time existed; and the substantial justice proviso in the Judicature Act, applicable only where customary law governs, could not excuse non-compliance by represented parties. The appeal was struck out with costs to the respondent.

Key legal issues

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01

Whether the failure to extract and file a decree rendered the appeal incompetent under rule 85(1)(h)

Holding

Yes; the appeal was struck out as incompetent because the decree was a mandatory part of the record of appeal.

Reasoning

The court followed its earlier decisions in Schweitzer v Cunningham and Kiboro v Posts & Telecommunications Corporation, holding that the words 'decree' and 'order' in the rules signify the formal expression of the adjudication, that the preparation of a decree is a procedural requirement under section 25 of the Civil Procedure Act and Order XX rule 7, and that the proviso to section 2 does not dispense with compliance with the Rules made under the Appellate Jurisdiction Act.

p. 3
02

Whether exclusion of the decree under rule 85(3) or an adjournment to file it could save the appeal

Holding

Neither course was available; exclusion would leave no basis for the appeal, and no sufficient reason for extension of time was shown.

Reasoning

Rule 85(3) is intended for material not required for the determination of the appeal; the decree is the formal expression of what was decided and cannot be excluded. The appellants were served with the objection notice on 2nd February 1978 yet took no steps to rectify the omission, and an error of law by counsel is not sufficient reason for extension of time under rule 4.

p. 3
03

Whether section 3(2) of the Judicature Act required the court to overlook the non-compliance

Holding

No; the provision applies to cases in which African customary law is applicable and was designed to assist lay litigants, not represented parties.

Reasoning

The court held the section concerns civil cases in which one or more parties is subject to or affected by African customary law, which was not this case. Further, the parties were represented by eminent counsel, and the substantive justice proviso may be designed for lay people appearing in person ignorant of procedural intricacies; it could not excuse non-compliance with a mandatory requirement.

p. 4

Legal principles established

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  • Rule 85(1)(h) of the Court of Appeal Rules makes extraction and filing of a decree with the record of appeal a mandatory procedural requirement; omission to file the decree is fatal and cannot be cured by filing it in a supplementary record or excused as a technicality.
  • The right of appeal exists on delivery of judgment, but the appellant must comply with the procedural requirements of the Rules; the proviso to section 2 of the Civil Procedure Act does not permit an appellant to pursue an appeal without regard to procedure.
  • The decree or order is the formal expression of the adjudication, distinct from the judgment, and an error of law by counsel does not constitute sufficient reason for extension of time.

Court orders

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  1. 1.The appeal was struck out as incompetent
  2. 2.Costs were given to the respondent
On appeal from
High Court of Kenya
Not stated in the judgment
Jurisdiction invoked
Section 66 of the Civil Procedure Act and the Rules of the Court made under section 5 of the Appellate Jurisdiction Act 1977

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Murai & others v Wainaina (Civil Appeal 46 of 1977) [1978] KECA 26 (KLR)", Case Analysis (1978). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1978/26/eng@1978-02-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.