BERNARD MAGOHA v LAND REGISTRAR & 3 OTHERS [1986] KECA 61 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a defective, late notice of appeal where the applicant lied about service, but left the door open for a fresh application.
What this practically means
#Executive summary
#Key legal issues
#Defective notice of appeal omitting a directly affected party
A notice of appeal that omits the name of a person directly affected by the appeal is bad at its inception under rule 76(1)
The notice of appeal did not contain the name of the 5th defendant in the High Court, Mr Osodo Obuny, who was clearly a person directly affected by the appeal. This omission was treated as an essential step not taken and a ground for striking out under rule 80.
Late and doubtful filing of notice of appeal
Where the fee receipt is out of time and the original notice cannot be traced, with conflicting stamps on the copies, the court may treat the notice as bad
The fee receipt was dated April 1, 1985, five days out of time; the original notice of appeal could not be traced; and the copies bore inconsistent dates ('March 2, 1985' and '26 March 1985'). This cast doubt on timely filing and contributed to striking out.
Credibility and service of the notice of appeal
An applicant shown to have lied about effecting service cannot be granted the indulgence of extension of time
The applicant claimed the sub-chief would serve the notices, but the Chief denied ever serving court processes in that capacity, refuting any suggestion of mistake. The court found the applicant demonstrably lied and thus disentitled him to indulgence.
Legal principles established
#- A striking out order is not a dismissal of the appeal and the party may re-apply
Court orders
#- 1.Struck out the notice of appeal under rule 80 of the Court of Appeal Rules
- 2.Left the notice of motion dated July 11, 1985 on the file, not dismissed, to permit a fresh application if advised
- 3.Awarded the costs of the day's proceedings to all the respondents
- On appeal from
- High Court
- Jurisdiction invoked
- Court of Appeal Rules - rules 74(2), 76(1) and 80
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "BERNARD MAGOHA v LAND REGISTRAR & 3 OTHERS [1986] KECA 61 (KLR)", Case Analysis (1986). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/61/eng@1986-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.