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Court of AppealDismissedHigh Court Civil Appeal No. 104 of 1987 (appeal from ruling of 14th August 1987)· [1988] KECA 111 (KLR)

Gregory Kiema Kyuma v Marietta Syokau Kiema [1988] KECA 111 (KLR)

Court of Appeal of Kenya
17 November 1988
3,063 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal struck out an appeal filed late because a certificate of delay only covers getting a copy of the order, not the full judgment and proceedings.

What this practically means

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Executive summary

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This was an appeal to the Court of Appeal at Nairobi against a High Court ruling of 14th August 1987 which dismissed the appellant's second application for extension of time and upheld the striking out of his appeal. The underlying dispute arose from a maintenance cause in the Resident Magistrate's Court in which the respondent wife obtained orders for non-cohabitation, custody of the children and maintenance, delivered on 5th December 1986 with final maintenance orders on 11th December 1986. The appellant filed a memorandum of appeal on 29th April 1987 relying on a certificate of delay covering the period taken to prepare certified copies of the proceedings and judgment. The court unanimously held that a certificate of delay under section 79G of the Civil Procedure Act (Cap 21) covers only the period requisite for preparing and delivering a copy of the decree or order appealed against, not copies of proceedings and judgment. The certificate relied upon was therefore invalid and the appeal filed on 29th April 1987 was out of time and incompetent. The application for extension of time made by the appellant's first advocate was not superfluous but necessary, and the conditional grant requiring payment of Shs. 25,000/- into court was never fulfilled, entitling the Judge to strike out the appeal. In the absence of a pending appeal, there was no jurisdiction to grant an interim injunction stopping attachment. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Validity of the certificate of delay under section 79G

Holding

The certificate issued on 2nd April 1987, which certified the time taken to prepare copies of the proceedings and judgment, was not the certificate contemplated by section 79G and could not extend the thirty-day period for filing the appeal.

Reasoning

Section 79G excludes from the thirty-day period only time the lower court certifies as requisite for preparation and delivery of a copy of the decree or order appealed against. The appellant, in error, applied for certified copies of the proceedings and judgment instead of the formal order. The certificate therefore did not cover the period 5th January to 2nd April 1987, and the appeal filed on 29th April 1987 was out of time and incompetent.

p. 5
02

Whether the application for extension of time was superfluous

Holding

The extension application was not superfluous but absolutely necessary, since the appellant had no valid certificate of delay and could not appeal as of right.

Reasoning

Since the certificate of delay was invalid, the appellant could not appeal as of right under section 79G. His only route to a competent appeal was the court's discretion under the proviso to admit the appeal out of time for good and sufficient cause. That discretion had been exercised on a condition (payment of Shs. 25,000/- into court by 12th May 1987) which the appellant never fulfilled, so the Judge was entitled to strike out the appeal.

p. 3
03

Jurisdiction to grant interim injunction pending appeal

Holding

There being no pending appeal after the striking out, the High Court had no jurisdiction to grant an interim injunction to stop attachment of the appellant's properties.

Reasoning

The injunction application was premised on the existence of a pending appeal. Once the appeal was held incompetent and struck out, the foundational jurisdiction for interim relief disappeared. The Court of Appeal found no fault in the Judge's holding on this point.

p. 3

Legal principles established

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  • A certificate of delay under section 79G of the Civil Procedure Act covers only the period requisite for the preparation and delivery of a copy of the decree or order appealed against, not the period required to obtain copies of the proceedings and judgment.
  • An appeal is a creature of statute and an appellant must comply strictly with the substantive and procedural legislation conferring the right of appeal.
  • Where there is no pending appeal, the court has no jurisdiction to grant an interim injunction.
  • A judge exercising discretion to admit an appeal out of time under the proviso to section 79G is entitled to do so on terms, and failure to fulfil the condition disentitles the appellant.

Court orders

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  1. 1.Appeal dismissed with costs
On appeal from
High Court of Kenya
Misc. Case No. 186 of 1987 (ruling of 14th August 1987); underlying High Court Appeal No. 104 of 1987
Jurisdiction invoked
First appeal to the Court of Appeal against a High Court ruling; right of appeal from subordinate courts conferred by section 65 of the Civil Procedure Act (Cap 21)

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, "Gregory Kiema Kyuma v Marietta Syokau Kiema [1988] KECA 111 (KLR)", Case Analysis (1988). High Court Civil Appeal No. 104 of 1987 (appeal from ruling of 14th August 1987). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/111/eng@1988-11-17

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