Murai & others v Wainaina (Civil Appeal 46 of 1977) [1978] KECA 26 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the failure to extract and file a decree rendered the appeal incompetent under rule 85(1)(h)
Yes; the appeal was struck out as incompetent because the decree was a mandatory part of the record of appeal.
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.
Whether exclusion of the decree under rule 85(3) or an adjournment to file it could save the appeal
Neither course was available; exclusion would leave no basis for the appeal, and no sufficient reason for extension of time was shown.
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.
Whether section 3(2) of the Judicature Act required the court to overlook the non-compliance
No; the provision applies to cases in which African customary law is applicable and was designed to assist lay litigants, not represented parties.
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.
Legal principles established
#- 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
#- 1.The appeal was struck out as incompetent
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ignatius Choge Mwangi v Adason Ole Minis & 6 others[2026] KECA 597 (KLR)10 Mar 2026followed
Cite this brief
#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.