Chege v Suleiman [1988] KECA 131 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal because the formal court order had never been extracted before the appeal was filed, confirming this is a fatal jurisdictional defect.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a record of appeal filed without the formally extracted decree or order confers jurisdiction on the Court of Appeal
- 2.Whether the later extraction and filing of the formal order as a supplemental record can cure the defect
- 3.Whether the omission is a procedural irregularity waivable in the court's inherent jurisdiction or a jurisdictional defect
Key legal issues
#Whether failure to include the formal order in the record of appeal at filing is a curable procedural defect
No - the defect is jurisdictional and cannot be cured by later extraction and filing of a supplemental record.
Section 66 of the Civil Procedure Act confers a right of appeal only from decrees and orders of the High Court. Consistent East African Court of Appeal authority (Mohamedbai Co Ltd v Ghani; Alibai v Raichura; Old East African Trading Company Ltd v Jetha) holds that no competent appeal lies unless the decree or order is formally extracted as the basis of the appeal. Rule 85(1) still requires the record to contain the judgment or order, so an appeal filed before extraction is incompetent.
Whether the court's inherent jurisdiction could waive the omission
It could not; the handmaid-not-mistress discretion does not extend to jurisdictional requirements.
Counsel for the appellant invoked Hancox JA's ruling in Githere v Kimungu on the flexible, handmaid-like role of procedural rules and argued the court could waive the point in its inherent jurisdiction. The court held the submission inapplicable because the omission went to jurisdiction, which is founded on statute and requires strict compliance, and was therefore not waivable.
Legal principles established
#- A record of appeal must contain the formally extracted judgment, decree or order; an appeal lodged before extraction of the formal order is incompetent and the Court has no jurisdiction to entertain it.
- Failure to extract the decree or order before lodging the record of appeal is a jurisdictional, not merely procedural, defect because the Court of Appeal's jurisdiction is founded on statute and requires strict compliance.
Court orders
#- 1.The appeal is struck out as incompetent with costs
- 2.The stay of execution granted by the Court pending the hearing and determination of the appeal is discharged and revoked
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court
- not_stated_in_judgment
- Jurisdiction invoked
- Section 66 of the Civil Procedure Act (appeal from High Court to Court of Appeal from decrees and orders); rules 81 and 85(1) of the Court of Appeal Rules
Relief refused
#Leave to prosecute the appeal despite the record lacking the formal order at filing
The court was precluded by a consistent line of East African Court of Appeal authority holding that failure to extract the decree or order before lodging the record of appeal goes to jurisdiction; the defect could not be waived as a mere procedural irregularity.
Costs
The appeal was struck out with costs (costs to the successful respondent); the court also discharged and revoked the stay of execution.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, sorry though we are, we are, precluded by authority from entertaining this appeal. We hold that it is incompetent and accordingly strike it out with costs.
We also discharge and revoke the stay of execution granted by this Court pending the hearing and determination of the appeal.
since the jurisdiction of this Court is founded on statute, it cannot be properly invoked unless the intending appellant strictly complies with its provisions
But we concur positively in the submission of Mr Lakha that this is not a procedural but a jurisdictional point.
Issues in the judgment
#The judgment text does not name the parties or the appeal number, so the case title and case number cannot be stated with certainty.
The disposition states the appeal is struck out 'with costs' but does not identify the party to whom costs are awarded; the respondent brought the motion and is described as 'the successful respondent'.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Gatiu and Gatiu & another v Wamutu (Civil Appeal 452 of 2019) [2025] KECA 818 (KLR)[2025] KECA 818 (KLR)9 May 2025applied
- Anwar Mohammed Bayusuf Limited v Diamond Trust Bank (K) Limited (Civil Appeal (Application) E099 of 2024) [2025] KECA 762 (KLR)[2025] KECA 762 (KLR)9 May 2025
- Bakari v Kioko & another (Environment and Land Appeal E012 of 2021) [2025] KEELC 620 (KLR)[2025] KEELC 620 (KLR)18 Feb 2025
Cite this brief
#Cite this brief
Caselaw, "Chege v Suleiman [1988] KECA 131 (KLR)", Case Analysis (1988). not_stated_in_judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/131/eng@1988-07-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.