Peter Martin Ahn v Jenifer Wairimu Openda [1982] KECA 38 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal because the notice was served late on a directly affected party and no valid excuse explained the delay.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appeal against the ex parte order of Law JA dispensing with service on Thomas Openda affected the competence of the appeal
- 2.Whether Thomas Openda was a person 'directly affected by the appeal' under rule 76(1)
- 3.Whether Thomas Openda was a person 'who took no part in the proceedings' in the High Court
- 4.Whether an ex parte application under the proviso to rule 76(1) must be made before the time for serving the notice of appeal expires
- 5.Whether the time for making that application could be extended under rule 4 for sufficient reason
- 6.Whether leave to appeal was required under the Married Women's Property Act 1882, or whether the appeal lay as of right as an appeal from a decree under Section 66 of the Civil Procedure Act
Key legal issues
#Whether the ex parte dispensation of service was validly obtained and whether the appeal was competent
Thomas Openda was directly affected by the appeal and took no part in the High Court proceedings, so an ex parte order could properly have been applied for, but the application was made about two years out of time without extension, and must be revoked; the appeal is incompetent and struck out.
All four High Court orders affected Openda's actions or property, so he was directly affected. Mere presence and entry of appearance without addressing the court does not constitute taking part in the proceedings for the proviso. The proviso requires application before the service period expires; granting it later would render the rule ineffectual. Rule 4 allows extension only for sufficient reason, and delay attributable to advocates' failure to observe the rules is insufficient. Law JA was unaware of the delay, so no extension can be implied.
Whether leave to appeal was required under the Married Women's Property Act 1882
No leave was required. The 1882 Act, as a statute of general application received through Section 3(1) of the Judicature Act, is read subject to the written law of Kenya, and the Civil Procedure Act provides for appeal as of right from decrees of the High Court under Section 66.
The High Court's adjudication conclusively determined the rights of the parties on matters in controversy, including nullifying the sale and declaring a trust, so it was a decree under Section 2 of the Civil Procedure Act, not an order. Order XLII and Section 75(1)(h) were therefore inapplicable. The appeal lay as of right under Section 66.
Legal principles established
#- An intended appellant must serve the notice of appeal on all persons directly affected by the appeal before or within seven days of lodging it, and an ex parte application to dispense with such service under the proviso to rule 76(1) must be made before the time for service expires.
- Failure to serve the notice of appeal on a person directly affected by the appeal, where no valid dispensation has been obtained, renders the appeal incompetent and liable to be struck out.
- A party seeking extension of time must explain the delay; an advocate's failure to construe or observe the rules is not a sufficient explanation.
- A person who is a party and enters appearance but neither addresses the court nor is represented takes no part in the proceedings for purposes of the proviso to rule 76(1), but remains a person directly affected by the appeal where the orders impugned affect his property.
- A decision that conclusively determines the rights of the parties on matters in controversy is a decree under Section 2 of the Civil Procedure Act, and an appeal lies from it as of right under Section 66 notwithstanding that it was made under Section 17 of the Married Women's Property Act 1882.
Court orders
#- 1.The ex parte order of Law JA in Civil Application No 2 of 1982 dispensing with service of the notice of appeal on Thomas Openda is set aside
- 2.The appeal is struck out as incompetent for failure to comply with rule 76(1)
- 3.The appellant to pay the respondent the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the leading judgment. Held Thomas Openda was a person directly affected by the appeal who took no part in the proceedings; an ex parte application under the proviso to rule 76(1) must be made before the time for serving the notice of appeal expires; no sufficient reason was shown for the delay, so the ex parte order of Law JA must be revoked and the appeal struck out as incompetent. Rejected the submission that leave to appeal was required under the Married Women's Property Act 1882, holding the appeal lay as of right under Section 66 of the Civil Procedure Act as an appeal from a decree.
In my opinion, the order of the single Judge in Civil Application No 2 of 1981 should not have been made, and must be revoked.p. 2
Wrote the judgment
Concurred with Potter JA that the appeal lay as of right, that the ex parte application under the proviso to rule 76(1) was two years out of time, that Law JA was unaware of the delay by inadvertence, and that the ex parte order must be set aside and the appeal struck out as incompetent.
I agree that the ex parte order must accordingly be set aside and since no sufficient reason has been shown for the delay in complying with rule 76(1), the appeal is incompetent and should be struck out.p. 3
Wrote the judgment
Agreed the appeal was incompetent. Held Thomas Openda, though a party who entered appearance, took no part in the proceedings and should have been served by June 11, 1980; the application to dispense with service was far out of time and unexplained, could not be extended, and ruled 87 was inapplicable. Held the High Court decision was a decree under Section 2 of the Civil Procedure Act, so the appeal lay as of right under Section 66.
It follows that the appeal is incompetent and must be struck out with the costs of the appeal being awarded to the respondent.p. 4
- On appeal from
- High Court of Kenya at Nairobi
- Jurisdiction invoked
- Appeal as of right under Section 66 of the Civil Procedure Act; procedural questions under rules 4, 54(1)(b), 74 and 76(1) of the Court of Appeal Rules
Relief refused
#Extension of time for making the ex parte application under the proviso to rule 76(1) and/or for serving the notice of appeal on Thomas Openda
No sufficient reason or satisfactory explanation was offered for the delay of nearly two years
Respondent's submission that leave to appeal was required under the Married Women's Property Act 1882
The 1882 Act is read subject to the written law of Kenya by Section 3(1) of the Judicature Act, and Section 66 of the Civil Procedure Act provides for appeal as of right from decrees of the High Court
Costs
The appellant do pay the respondent the costs of the appeal
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is ordered that the ex parte order of Law JA be set aside, that the appeal be struck out as incompetent and that the appellant do pay the respondent the costs of the appeal.
It follows that the appeal is incompetent and must be struck out with the costs of the appeal being awarded to the respondent.
In my opinion, the application under the proviso must be made before the time expires for lodging notice of appeal under the rule.
It is well settled that a party seeking an extension of time under rule 4 must explain the delay and in that respect the failure of advocates to construe the rules correctly or to observe them is not a sufficient explanation.
The result of the proceedings in the superior court conclusively determined the rights of the appellant, the respondent and her husband to at least some matters in controversy in the suit
It follows that this appeal is incompetent for failure to comply with rule 76(1).
Issues in the judgment
#The judgment does not state the case title or appeal number of this appeal; only the related Civil Application No 2 of 1982 is named. The appellant's name is not given anywhere in the judgment.
The judgment refers inconsistently to the ex parte application as Civil Application No 2 of 1982 and Civil Application No 2 of 1981.
The signature block contains the misspelling 'CHEIF JUSTICE' for the Chief Justice.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Martin Ahn v Jenifer Wairimu Openda [1982] KECA 38 (KLR)", Case Analysis (1982). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1982/38/eng@1982-06-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.