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Court of AppealStruck OutCivil Appeal 7 of 1983· [1983] KECA 4 (KLR)

MUNICIPAL COUNCIL OF KITALE vs NATHAN FEDHA [1983] KECA 4 (KLR)

Court of Appeal
23 November 1983
KNKnellerHAHancoxPLPlatt
2,620 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an appeal because a copy of the decree was missing from the record — lawyers must file complete, timely appeal records.

What this practically means

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Executive summary

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This ruling of the Court of Appeal at Nairobi (Kneller, Hancox and Platt, Ag. JJ.A.) dealt with three consolidated motions arising as preliminary matters in Civil Appeal 7 of 1983, an appeal by the Municipal Council of Kitale against a High Court judgment at Eldoret (Mbaya, J) dated December 1, 1982 in Civil Suit 106 of 1981. The appellant sought leave to include a copy of the High Court decree in its record of appeal, filed February 2, 1983 without it, and separately sought extension of time for serving its notice of appeal, which was served three days out of time. The respondent moved to strike out the notice and record of appeal. Kneller JA, in the leading ruling, held that the omission of the decree was due to the appellant's advocate's oversight, which does not normally constitute 'sufficient reason' under rule 4, and that once the record was filed the extra 21 days attributable to the registry's delay were extinguished; the omission could not be cured by a supplementary record, following Kiboro v P & TC. The appellant also failed the second hurdle: it did not provide a sufficient statement of the nature of the judgment and grounds of appeal to enable the court to assess injustice. Hancox JA agreed, adding that a respondent without locus standi under rule 80 may apply under rule 42. Platt Ag JA held that inclusion of the decree is mandatory under rule 85(1) and its absence rendered the appeal incompetent. The appellant's motions were refused with costs; the respondent's motion was allowed and the notice and record of appeal were struck out with costs. The decision below was not disturbed.

Key legal issues

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01

Whether an advocate's oversight amounts to 'sufficient reason' for extension of time under rule 4

Holding

Normally it does not; the appellant failed to establish sufficient reason and failed the first hurdle.

Reasoning

The advocate admitted the omission of the decree from the record was due to his oversight; he kept no note of the judgment and did not check it in the registry. The court distinguished the very special class of case where a party exercises all due diligence but the High Court fails to supply copies in time, holding this was not such a case.

p. 2
02

Whether a missing copy of the decree in the record of appeal can be cured by a supplementary record

Holding

No; once the record was filed the extra 21 days were extinguished and the omission of a document that should have been in the original record cannot be cured by supplementary filing.

Reasoning

Following Kiboro v P & TC, the court held that a supplementary record cannot comprise documents which ought to have been included in the original record of appeal after the prescribed time has ended; the only remedy is a fresh application under rule 4, which was not made.

p. 2
03

Whether the respondent's objections justified striking out the notice and record of appeal

Holding

Most objections (address for service, certificate of delay, proof of service) were without merit, but the absence of a copy of the decree from the record required the appeal to be struck out.

Reasoning

The court found the delay in service of the notice of appeal satisfactorily explained; the addresses were known to the respondent; the certificate of delay was not specifically required by any rule; and the record was served in time under rule 87(1). However, rule 85(1) mandatorily required a copy of the decree, whose absence rendered the appeal incompetent.

p. 5

Legal principles established

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  • An advocate's oversight does not normally constitute 'sufficient reason' for extending time under rule 4.
  • A document that ought to have been in the original record of appeal cannot be added by way of supplementary record after the time for filing the complete record has expired.
  • A party applying to extend time must support the application with a sufficient statement of the nature of the judgment and reasons for desiring to appeal, so the court can assess whether refusal would cause injustice.
  • Inclusion of a copy of the decree in the record of appeal is a mandatory requirement under rule 85(1), and its omission renders the appeal incompetent.
  • Where the time taken by the High Court registry to prepare a copy of the proceedings is excluded under the proviso to rule 81(1), the complete record must be filed within the remaining time once the record is filed, extinguishing the extended period.
  • A respondent with no locus standi to strike out an appeal under rule 80 for want of service of the notice of appeal may apply instead under rule 42.

Court orders

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  1. 1.The appellant's motion on notice of February 10, 1983 is refused with costs
  2. 2.The respondent's motion on notice filed on March 8, 1983 is allowed with costs
  3. 3.The appellant's motion on notice of March 18, 1983 is rejected with costs
  4. 4.The notice and record of appeal are struck out with costs
On appeal from
High Court of Kenya at Eldoret
Civil Suit 106 of 1981
Jurisdiction invoked
Court of Appeal Rules (rules 1(3), 4, 42(1), 44, 74, 76(1), 80, 81(1), 85(1), 87(1))

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "MUNICIPAL COUNCIL OF KITALE vs NATHAN FEDHA [1983] KECA 4 (KLR)", Case Analysis (1983). Civil Appeal 7 of 1983. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1983/4/eng@1983-11-23

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