Andrew A Apiyo v Michael M O Mashere [1983] KECA 19 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal because the lawyer missed filing deadlines, confirming that admitting your own mistake is not an excuse.
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 should be struck out for failure to serve the Notice of Appeal within time under rule 76(1)
- 2.Whether failure to serve the Memorandum of Appeal and record of Appeal within seven days under rule 87(1) rendered the appeal incompetent
- 3.Whether breaches of the appellate rules, including omission of the certified copy of the order under rule 85(1)(h), could be cured by extension of time under rule 4 on the basis of sufficient cause
Key legal issues
#Whether breaches of rules 76(1), 85(1)(h) and 87(1) of the Court of Appeal Rules justified striking out the appeal
Yes. Non-compliance with the service and record requirements rendered the appeal incompetent, and no sufficient cause was shown to warrant extension of time.
The respondent objected that the Notice of Appeal and the Memorandum of Appeal and record were served months late, and that the certified copy of the order was absent from the record. Counsel for the appellant conceded the breaches and sought extension of time, but could only attribute the delays to his own omission, which the court held was not sufficient cause.
What constitutes sufficient cause for extension of time under rule 4
A free admission that the lapses resulted from counsel's own omission does not constitute sufficient cause.
The court required the appellant to bring himself within rule 4 by showing sufficient cause for the failure to take the required steps timeously. Counsel candidly admitted the delays stemmed from his own omission. The court accepted the candour but held that such an admission, without an adequate explanation, fell short of the threshold for extension.
Legal principles established
#- An appellant seeking extension of time for compliance with the appellate rules must show sufficient cause explaining why the required steps were not taken timeously; mere admission of omission by counsel does not amount to sufficient cause.
Court orders
#- 1.The appeal is struck out as incompetent
- 2.Costs of the appeal awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Eldoret
- Civil Case No. 111 of 1976
- Jurisdiction invoked
- Appellate jurisdiction under the Court of Appeal Rules (rules 76(1), 85(1)(h), 87(1) and rule 4 on extension of time)
Relief refused
#Extension of time to deem the Notice of Appeal and Memorandum of Appeal served within time and to file the certified order out of time
Counsel freely admitted the lapses were his own omission, which did not constitute sufficient cause under rule 4
Costs
Costs to the respondent
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.
In order to succeed Mr Kamau has to bring himself within rule s4 by showing sufficient cause to explain why the required steps were not taken timeously.
He is gallant enough to admit freely that the lapses which occurred happened due to ommision on his part. That is not sufficient cause.
The appeal is ordered to be struck out as incompetent, with costs to the respondent.
Order accordingly. Dated at Nakuru this 5th day of October, 1983.
Issues in the judgment
#The judgment refers to 'rule s4' and 'rule 85 (1) (h)' with inconsistent spacing/typographical errors; the intended reference appears to be rule 4
The header styles the matter as a 'RULING OF THE COURT' though no judge is identified as authoring the opinion
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Andrew A Apiyo v Michael M O Mashere [1983] KECA 19 (KLR)", Case Analysis (1983). Civil Case 111 of 1976. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1983/19/eng@1983-10-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.