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Court of AppealPartially AllowedCivil Appeal No. 95 of 1985

Michael A O Mashere v Rotas Makokha Walusala [1987] KECA 51 (KLR)

Court of Appeal of Kenya
25 March 1987
HPH.G PlattJGJ.M GachuhiFAF.K Apaloo
1,369 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that judges can only throw out an appeal without a full hearing in the very clearest cases, restoring the appellant's right to be heard.

What this practically means

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Executive summary

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The Court of Appeal at Kisumu (Platt, Gachuhi and Apaloo JJA) allowed a second appeal against the High Court's summary rejection, under section 79B of the Civil Procedure Act, of the appellant's first appeal from a magistrate's decision dismissing his libel-related suit. The appellant took two points: first, that the first appeal ought not to have been dismissed summarily; second, that the trial judgment should be reversed. The court declined to entertain the second point, holding the disputes were matters of fact unsuitable for the second appellate court under section 72. On the main issue, the court construed the words 'no sufficient ground' in section 79B, holding that the power of summary rejection operates only at the narrow end of the spectrum of grounds - the clearest unsuccessful cases - and must be sparingly exercised. Following its earlier decision in Peter Nzioki & Another v Aron Kitusa, the court held that where the grounds are substantial and the appeal might go either way, summary dismissal would improperly oust the appellant's constitutional right of appeal, normally to be exercised by a full hearing under sections 79C and 65(1)(b). The court also restated the first appellate court's duty to re-hear the case and make up its own mind on the evidence, per Cogland v Cumberland as approved in Pandya v R. The court set aside the High Court's judgment, remitted the record to the High Court to hear and determine the first appeal, made no order on costs today but directed that the costs of the appeal follow the event in the High Court, and ordered return of the appellant's deposit.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the first appellate court acted correctly in law in dismissing the first appeal summarily under section 79B of the Civil Procedure Act
  2. 2.Whether on the merits the judgment of the trial court should be reversed

Key legal issues

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01

Scope of the High Court's power under section 79B to reject an appeal summarily

Holding

The power must be sparingly used and only in the clearest cases; it operates only where grounds cannot possibly succeed, and cannot properly be exercised where the grounds of appeal are substantial and the appeal might go either way.

Reasoning

Section 79B allows the High Court to reject an appeal where the judge considers there is no sufficient ground for interfering with the decree. Construing 'no sufficient ground', the court held the section targets the clearest unsuccessful grounds on the spectrum. Following Peter Nzioki & Another v Aron Kitusa, the power is sparingly exercised only in clearest cases of fact or law. Here the appellant's argument was substantial, so summary dismissal was wrong.

p. 2
02

Duty of the first appellate court on appeal

Holding

The High Court hearing a first appeal must re-hear the case, reconsider the materials, weigh the trial judgment and make up its own mind, deciding all questions of law or fact.

Reasoning

Relying on Cogland v Cumberland as approved in Pandya v R, the court restated the first- appellate duty: to reconsider the materials, carefully weigh the judgment below, and overrule it if wrong, while being guided by the trial judge's impression on demeanour. The appellant was entitled to have the judge listen and give his own judgment on the evidence rather than have the appeal rejected without hearing.

p. 1

Legal principles established

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  • The power under section 79B of the Civil Procedure Act to summarily dismiss an appeal must be sparingly exercised and only in the clearest cases; it cannot be used to oust a litigant's constitutional right of appeal where the grounds are substantial.

Court orders

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  1. 1.Judgment of the High Court summarily rejecting the appeal set aside
  2. 2.Record remitted to the High Court to hear and determine the first appeal
  3. 3.No order on costs today; costs of this appeal to follow the event in the High Court
  4. 4.Deposit paid to the Court of Appeal by the appellant to be returned to him

The bench

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One judgment of the whole court — no separate or dissenting opinions.

HP
majority
JG
majority
FA
majority
On appeal from
High Court at Kakamega
null
Jurisdiction invoked
Second appeal under section 72 of the Civil Procedure Act

Relief refused

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Reversal of the trial court's judgment on the merits

The disputes were matters of fact not suitable for the Court of Appeal on second appeal under section 72 of the Civil Procedure Act

p. 1

Costs

No order on costs today; the costs of this appeal will follow the event in the High Court.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

That power should be sparingly used, and only in the clearest cases, such as an appeal based entirely on points of fact, raising no questions of law
p. 2Exercise of section 79B power of summary rejection
it is our view that the power in section 79B was not to be exercised to oust the appellant’s constitutional right of appeal
p. 2Constitutional right of appeal vs summary dismissal
We agree with the appellant on his first ground that the High Court ought not to have summarily rejected the appeal, and we set aside the judgment of the High Court
p. 2Disposition - setting aside the High Court's summary rejection
We remit the record to the High Court to hear and determine the first appeal
p. 2Final orders - remittal
There will be no order on costs today, but the costs of this appeal will follow the event in the High Court
p. 3Costs order

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Michael A O Mashere v Rotas Makokha Walusala [1987] KECA 51 (KLR)", Case Analysis (1987). Civil Appeal No. 95 of 1985. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1987/51/eng@1987-03-25

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