Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealStruck OutCivil Appeal No. 32 of 1982· [1983] KECA 113 (KLR)

ANDREW A. APIYO vs MICHAEL A. O. MASHERE [1983] KECA 113 (KLR)

Court of Appeal
5 October 1983
353 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~1 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal struck out an appeal because the appellant's lawyer missed procedural deadlines, and honesty about the mistake was no excuse.

What this practically means

#

Executive summary

#
This Court of Appeal decision at Nakuru (Madan and Kneller, JJ A, and Chesoni, Ag. J A) determined a preliminary objection by the respondent, Michael M O Mashere, to the prosecution of Andrew A Apiyo's appeal from a ruling of the High Court at Eldoret (Mbaya, J) dated 7th May 1982 in Civil Case No. 111 of 1976. The respondent objected that the Notice of Appeal, filed on 14th May 1982, was not served on him within the seven days required by rule 76(1), and that the Memorandum of Appeal and record of Appeal, lodged on 14th July 1982, were not served within seven days as required by rule 87(1). Counsel for the appellant, Mr Kamau, candidly conceded that both rules were breached, service having occurred only on 30th October 1982, and further conceded a breach of rule 85(1)(h) because the certified copy of the order appealed against was not included in the Record of Appeal. He sought extension of time under rule 4 so that the Notice and Memorandum of Appeal would be deemed served within time, and extension to file the certified order out of time. The court held that an applicant must show sufficient cause for the failure to act timeously, and that counsel's free admission that the lapses were due to his own omission did not constitute sufficient cause. The appeal was struck out as incompetent, with costs to the respondent.

Key legal issues

#
01

Whether failure to serve the Notice of Appeal, Memorandum of Appeal and record of Appeal within the prescribed times rendered the appeal incompetent

Holding

Yes; non-compliance with rules 76(1) and 87(1), coupled with the breach of rule 85(1)(h), rendered the appeal incompetent and it was struck out.

Reasoning

The respondent objected that the Notice of Appeal filed on 14th May 1982 was not served within 7 days, and that the Memorandum and record of Appeal lodged on 14th July 1982 were not served within seven days. Counsel for the appellant conceded non-compliance, service having occurred only on 30th October 1982, and further conceded that the certified copy of the order was missing from the record. The court declined to exercise the rule 4 discretion to extend time because counsel admitted the lapses were his own omissions.

p. 1
02

Whether 'sufficient cause' under rule 4 was established to excuse the procedural defaults

Holding

No; counsel's candid admission that the omissions were his own did not amount to sufficient cause.

Reasoning

The appellant's advocate applied for extension of time so that the Notice and Memorandum of Appeal would be deemed served within time, and for extension to file the certified order out of time. The court held that an applicant under rule 4 must demonstrate sufficient cause for the failure to act timeously, and that a frank admission of personal omission on the part of counsel falls short of that standard. The request was accordingly refused.

p. 1

Legal principles established

#
  • An appellant seeking extension of time for compliance with the appeal rules must show sufficient cause explaining why the required steps were not taken timeously; a free admission that the delay was due to counsel's own omission is not sufficient cause.

Court orders

#
  1. 1.The appeal was ordered to be struck out as incompetent
  2. 2.Costs of the appeal awarded to the respondent
On appeal from
High Court of Kenya at Eldoret
Civil Case No. 111 of 1976
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal under the applicable appeal rules (rules 76(1), 85(1)(h), 87(1) and 4 of the Court of Appeal Rules)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "ANDREW A. APIYO vs MICHAEL A. O. MASHERE [1983] KECA 113 (KLR)", Case Analysis (1983). Civil Appeal No. 32 of 1982. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1983/113/eng@1983-05-10

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