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Court of AppealAllowedCivil Appeal (as per Joint Memorandum of Appeal against the decision of Masime J of 30th May, 1985; High Court Civil Appeals 26A and 26B of 1982)· [1988] KECA 89 (KLR)

Okelo & another v Osonga (Civil Appeal 165 of 1986) [1988] KECA 89 (KLR)

Court of Appeal of Kenya
29 April 1988
HAHancoxPLPlattGAGachuhi
1,702 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that the High Court can review its own appeal decisions, and appeals to the Court of Appeal fail without a filed Notice of Appeal.

What this practically means

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Executive summary

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This Court of Appeal decision at Kisumu (Hancox, Platt and Gachuhi JJA) arose from a dispute over the seizure of a bull in a harambee fundraising drive for Kakwara Primary School. A magistrate found the appellants had seized the respondent's bull without lawful authority and awarded damages of Kshs 1,000 plus interest and costs. The appellants' two High Court appeals (Civil Appeals 26A and 26B of 1982) were summarily rejected under section 79B of the Civil Procedure Act by Aganyanya J and Schofield J. An application to set aside the summary rejection and reinstate the appeals was dismissed by Masime J, who held he had no jurisdiction to entertain it. This appeal was against Masime J's decision. The Court held that without a Notice of Appeal it lacked jurisdiction to entertain an appeal against a High Court decision, and the only Notice of Appeal on record was against Masime J's decision, so the appeal had to be treated as being against that decision alone. Applying its earlier decision in Peter Nzioki and another v Aron Kivuva Kitusa, the Court held that the power of review in the High Court under order 44 rule (1) and section 80 of the Civil Procedure Act is not limited to first-instance decisions but extends to decisions on appeal, and that a decision on such an application is appealable as of right under order 42 rule 1(1)(aa). Masime J should have heard the application for review. The appeal was allowed, the order of Masime J set aside, and the application for review remitted to the High Court for hearing according to law, with costs in the Court of Appeal to the appellants and High Court costs to abide the event.

Key legal issues

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01

Whether the Court of Appeal could entertain the appeal in the absence of Notices of Appeal against the summary rejections under section 79B

Holding

The appeal could only be treated as one against Masime J's decision, since no Notice of Appeal existed against the earlier summary rejections.

Reasoning

The Joint Memorandum of Appeal showed the appeal was against Masime J's decision of 30th May 1985. Although some grounds complained of the summary rejections and the merits, the only Notice of Appeal on record was against Masime J's decision, and the Court held it lacked jurisdiction to entertain appeals against the other decisions.

p. 3
02

Whether Masime J had jurisdiction to reinstate the previously dismissed appeals

Holding

Masime J erred: the application was in substance one for review, which he should have heard; he wrongly concluded he had no jurisdiction.

Reasoning

Relying on Peter Nzioki v Aron Kivuva Kitusa, the Court held that an application for review may be brought under order 44 or section 80 of the Civil Procedure Act, that review extends to decisions on appeal and not only first-instance decisions, and that dismissal of a review application is appealable as of right under order 42 rule 1(1)(aa). Masime J should therefore have heard the application.

p. 3

Legal principles established

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  • An appeal to the Court of Appeal against a decision of the High Court cannot be entertained without a Notice of Appeal against that decision.
  • One judge of the High Court cannot set aside the decision of another judge of equal jurisdiction; the only route is review under order 44 rule (1) of the Civil Procedure Rules or section 80 of the Civil Procedure Act.
  • The power of review in the High Court is not limited to decisions at first instance but extends to decisions on appeal, and such a review decision is itself appealable.

Court orders

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  1. 1.The appeal be allowed with costs in this Court
  2. 2.The order of Masime J dated 30th May, 1985 refusing to reinstate the appeals is set aside
  3. 3.The application for review be remitted to the High Court for hearing according to law
  4. 4.Costs in the High Court hearing to abide the event
On appeal from
High Court
Civil Appeals 26A and 26B of 1982 (decision appealed against being that of Masime J of 30th May, 1985)
Jurisdiction invoked
Appeal to the Court of Appeal against a decision of the High Court, requiring a Notice of Appeal under the Civil Procedure Rules; appeal as of right under order 42 rule 1(1)(aa) against dismissal of an application for review

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, "Okelo & another v Osonga (Civil Appeal 165 of 1986) [1988] KECA 89 (KLR)", Case Analysis (1988). Civil Appeal (as per Joint Memorandum of Appeal against the decision of Masime J of 30th May, 1985; High Court Civil Appeals 26A and 26B of 1982). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/89/eng@1988-04-29

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