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Court of AppealPartially AllowedCivil Appeal (High Court Civil Case No 106 of 1981, Kitale/Eldoret)· [1983] KECA 70 (KLR)

Municipal Council of Kitale v Nathan Fedha [1983] KECA 70 (KLR)

Court of Appeal of Kenya
23 November 1983
AKA.A KnellerAHA.R.W HancoxHPH.G Platt
2,421 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out the Council's appeal because its record omitted a copy of the decree, and an advocate's oversight did not justify the omission.

What this practically means

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Executive summary

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Three consolidated motions arose out of an intended appeal by the Municipal Council of Kitale against Nathan Fedha from a High Court judgment delivered on December 1, 1982. The notice of appeal was lodged in time but served three days outside the seven-day period under rule 76(1); the record of appeal filed on February 2, 1983 omitted a copy of the High Court decree. The appellant first sought leave to include the decree in the record; Kneller JA held that the advocate's oversight did not constitute 'sufficient reason' under rule 4, that a supplementary record cannot cure the omission of a document that belonged in the original record, and that the application also failed because counsel gave no statement of the nature of the judgment and grounds of appeal enabling the court to assess injustice. The respondent's motion under rule 80 to strike out the notice and record succeeded on the missing decree, a mandatory requirement of rule 85(1), even though the court rejected his other objections on service and addresses. The appellant's motion to extend time for serving the notice of appeal was rejected. Platt Ag JA, agreeing, held the appeal incompetent and found it unnecessary to determine the remaining motions; Hancox JA agreed with the proposed orders, adding that a respondent lacking locus standi under rule 80 may apply under rule 42. The notice and record of appeal were struck out, with costs against the appellant on all motions.

Key legal issues

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01

Whether 'sufficient reason' existed under rule 4 to extend time to include the decree in the record

Holding

No - the defect was due to the advocate's oversight and no sufficient reason was established.

Reasoning

The advocate waited for a certified copy of the judgment before extracting the decree and did not exercise all due diligence. Counsel offered no supporting statement of the nature of the judgment and grounds of appeal, so the court could not assess injustice. The application failed on both hurdles.

p. 2
02

Whether the appeal should be struck out for want of a copy of the decree in the record

Holding

Yes - rule 85(1) mandatorily requires the decree in the record of appeal; the omission renders the appeal incompetent.

Reasoning

The omission could not be cured by supplementary filing, as Kiboro establishes. Since the record was defective in a manner rendering the appeal incompetent, striking out followed and the court found it unnecessary to determine the other motions.

p. 4
03

Whether technical objections to service and content of the notice of appeal warranted striking out

Holding

No - the delay in service was satisfactorily explained and the address objections lacked merit.

Reasoning

Service was three days late but the delay was accounted for by the process server's failure and intervening absence and holidays. The respondent knew the appellant's whereabouts, and addresses appeared in the record of appeal as rule 85(1)(b) requires. Proof of service was effectively admitted by the respondent's own affidavit.

p. 3

Legal principles established

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  • An advocate's oversight is not normally 'sufficient reason' to extend time under rule 4.
  • A document which ought to have been in the original record of appeal cannot be added by way of supplementary record after the prescribed time.
  • Inclusion of a copy of the decree in the record of appeal is a mandatory requirement under rule 85(1), and its absence renders the appeal incompetent and liable to be struck out.
  • An application to extend time should be supported by a statement of the nature of the judgment and reasons for appealing, so the court can assess whether refusal would cause injustice.

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
Civil Case No 106 of 1981
Jurisdiction invoked
Court of Appeal Rules (rules 4, 42(1), 44, 74, 76, 80, 81, 85, 87) - inherent jurisdiction under rule 1(3)

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, "Municipal Council of Kitale v Nathan Fedha [1983] KECA 70 (KLR)", Case Analysis (1983). Civil Appeal (High Court Civil Case No 106 of 1981, Kitale/Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1983/70/eng@1983-11-23

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