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Court of AppealPartially AllowedNot stated in judgment (notice of motion for review filed April 28, 1986)· [1986] KECA 63 (KLR)

JOB ASAMBA KAMULLA v ZAKAYO KAGULUKA ASAMBA & 2 OTHERS [1986] KECA 63 (KLR)

Court of Appeal of Kenya
20 June 1986
859 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal ruled that grievances about how a High Court case was handled must be raised on appeal, not through review, but allowed the impoverished applicant to appeal without paying fees.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Kisumu delivered by Hancox JA on June 20, 1986, in an application described as peculiar: a notice of motion seeking review of a ruling of Aganyanya J of September 25, 1985. The court traced the history of the Kakamega suit filed on August 30, 1984 by the applicant and Lazaro A Asamba against three respondents. Lazaro's application to strike out the applicant's name was refused in January 1985; costs of Kshs 148.00 were ordered for an adjournment and never paid; and on September 25, 1985, the case proceeded in Lazaro's absence and was dismissed with costs after a ruling in which only the second plaintiff was heard and no witnesses called. Hancox JA acknowledged unsatisfactory features in the proceedings but held that the remedy lay by way of appeal - for which a valid notice of appeal had been filed on October 7, 1985 within the fourteen-day period - not by review to the Court of Appeal. The review application was dismissed as incompetent. However, the court granted leave to appeal as a pauper under rule 112, finding the applicant a person without sufficient means and the appeal not without a reasonable possibility of success, with the record to be prepared by the Registrar and fees payable only upon recovery. The court also gave leave to apply within 30 days for extension of time under rules 4 & 81. Costs were reserved.

Key legal issues

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01

Competence of a review application in the Court of Appeal

Holding

The application for review is incompetent; dissatisfaction with the High Court ruling must be ventilated on appeal

Reasoning

The court traced the procedural history, noted the applicant had already filed a valid notice of appeal within the fourteen-day period under rule 74, and concluded that any dissatisfaction with the ruling of September 25, 1985, delivered after a submission by only the second plaintiff without hearing the first plaintiff, is a matter for appeal, not review.

p. 2
02

Leave to appeal as a pauper under rule 112

Holding

Granted, because the requirements of rule 112 are less stringent than Order 32 of the Civil Procedure Rules and the applicant demonstrated he is a person without sufficient means and that the appeal is not without a reasonable possibility of success

Reasoning

The applicant's handwritten letter of October 14, 1985 set out circumstances showing he was without sufficient means to pay prescribed court fees. The court found the appeal not without a reasonable possibility of success as rule 112 requires, and the sole respondent present did not object.

p. 2
03

Extension of time to institute the appeal

Holding

No application for extension was before the court, but leave was given to apply within 30 days under rules 4 & 81, to be served personally on each respondent

Reasoning

The court declined to grant extension directly since no such application existed, but preserved the applicant's access to justice by permitting a fresh application within 30 days, with personal service on each respondent to protect their position.

p. 2

Legal principles established

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  • Grievances about the manner in which first-instance proceedings were conducted must be pursued by appeal, not by an application for review to the Court of Appeal
  • A valid notice of appeal filed within the fourteen-day period under rule 78 (rule 74 as stated) preserves the appellate remedy

Court orders

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  1. 1.The application for review filed on April 28, 1986 is dismissed as incompetent
  2. 2.Leave granted to the applicant to lodge an appeal without prior payment of court fees and without security for costs, the record of appeal to be prepared by the Registrar, on condition that the applicant pays the fees if he recovers anything in the entered appeal
  3. 3.Leave given to the applicant to apply to the court within 30 days for an extension of time to institute his appeal under rules 4 & 81, such application to be served personally on each respondent
  4. 4.Costs reserved for decision in due course
  5. 5.Copies of the ruling to be given to each party without payment after typing
On appeal from
High Court of Kenya at Kakamega
Not stated
Jurisdiction invoked
Inherent review jurisdiction of the Court of Appeal; rules 74, 112, 4 & 81 of the applicable appellate rules; Order 32 of the Civil Procedure Rules referred

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "JOB ASAMBA KAMULLA v ZAKAYO KAGULUKA ASAMBA & 2 OTHERS [1986] KECA 63 (KLR)", Case Analysis (1986). Not stated in judgment (notice of motion for review filed April 28, 1986). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/63/eng@1986-06-20

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