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Court of AppealAllowedCivil Application No NAI. of 1996 (arising from Civil Appeal No 199 of 1995)· [1997] KECA 7 (KLR)

ANDREW DAVID MULEI v DAVID MUTISYA MUASA [1997] KECA 7 (KLR)

Court of Appeal of Kenya
10 June 1997
ASA.B. Shah
1,082 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that when an appeal is struck out, everything attached to it dies too — but Rule 4 lets litigants start again if they move promptly.

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 Nairobi delivered by Shah JA on 10th June 1997, determining an application under Rule 4 for extension of time to file a fresh notice of appeal and record of appeal. The applicant's earlier appeal, Civil Appeal No 199 of 1995, was struck out on 17th December 1996 as incompetent for want of inclusion of exhibits in the record of appeal, a defect attributable to his then advocate Mr Makundi. The application was filed six days after the striking out, which the court accepted as prompt. The respondent opposed, arguing through counsel Mr Mbithi that a supplementary record could have been filed, that the motion was defectively drawn, and that no fresh notice of appeal was needed since a valid one had earlier been filed. The court rejected all these arguments. Following Omolo JA in John Kago Ndungu v James Karimi Wambugu, it held that nothing could be done while the incompetent appeal was pending, and that once an appeal is struck out both the notice of appeal and the record of appeal are extinguished, so a fresh notice of appeal was properly sought. It also confirmed that Rule 4 is available even after an appeal has been struck out. Although the court criticised the current advocate Mr Mutua's 'wishful thinking' excuse as lacking candour, it held that the litigant himself bore no fault, had an arguable appeal, and deserved the discretionary relief. The application was allowed with time limits of seven days for the fresh notice of appeal and twenty-one days thereafter for the record, with costs in the intended appeal.

Key legal issues

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01

Effect of striking out an incompetent appeal on the notice of appeal and record of appeal

Holding

Both the notice of appeal and the record of appeal are extinguished when the appeal is struck out, entitling the applicant to seek leave to file afresh.

Reasoning

The court held that the notice of appeal is the source of the appeal's existence, so when the appeal is struck out the notice goes with it. The respondent's attempt to distinguish the appeal from the record of appeal was dismissed as an argument in vacuum, since once the appeal is struck out nothing remains.

p. 2
02

Availability of Rule 4 extension after an appeal has been struck out

Holding

Rule 4 applies to applications for extension of time even where an appeal was filed and subsequently struck out.

Reasoning

The respondent argued rule 4 could only help where no appeal had been filed within time. The court rejected this, citing umpteen authorities of the court establishing that once an appeal is struck out, rule 4 enables the applicant to seek the extension of time sought.

p. 2
03

Whether the applicant could have cured the missing exhibits while the incompetent appeal was pending

Holding

He could not; the rules do not permit a supplementary record where decrees or orders are concerned, and an incurably defective appeal cannot be withdrawn.

Reasoning

Relying on Omolo JA in John Kago Ndungu v James Karimi Wambugu, the court held that nothing could be done while the incompetent appeal was pending: no supplementary record could be filed and the appeal could not be withdrawn. Only after striking out could the appellant act, which the applicant did promptly within six days.

p. 2
04

Whether counsel's lack of candour should defeat the applicant's application

Holding

Despite reservations about counsel's unwarranted excuse, the applicant himself deserved the exercise of discretion since the defects were not his fault.

Reasoning

The court found counsel's 'wishful thinking' excuse made up and lacking candour, but distinguished the litigant from his advocates. The applicant had an arguable appeal and was not at fault for either advocate's failings, so the discretionary remedy was granted despite the criticism of counsel.

p. 2

Legal principles established

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  • When an appeal is struck out, the notice of appeal from which the appeal takes its existence goes out with the appeal and ceases to exist, so a party must seek leave to file a fresh notice of appeal.
  • Once an appeal is struck out, the record of appeal goes with it; there is nothing left to distinguish between the appeal and its record.
  • Rule 4 of the Court of Appeal Rules is available to a party seeking extension of time even after an appeal has been filed and struck out, not only where no appeal was filed in time.
  • While an incompetent appeal is pending, the appellant cannot file a supplementary record of appeal or withdraw it; only after the appeal is struck out can the appellant move to put his house in order.
  • Counsel cannot assume that other records of appeal contain the exhibits missing from his own record; it is counsel's duty to verify the record.

Court orders

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  1. 1.The application is allowed
  2. 2.The applicant is at liberty to file a fresh notice of appeal within seven (7) days of the date of the ruling
  3. 3.The applicant is to file the record of appeal within twenty-one (21) days thereafter
  4. 4.A certified copy of the ruling is to be included in the new record of appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 85 2(A)

Cases cited (1)

  • John Kago Ndungu v James Karimi Wambugu
    Civil Application No 209 of 1996 (unreported)
On appeal from
High Court
null
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time)

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, "ANDREW DAVID MULEI v DAVID MUTISYA MUASA [1997] KECA 7 (KLR)", Case Analysis (1997). Civil Application No NAI. of 1996 (arising from Civil Appeal No 199 of 1995). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/7/eng@1997-06-10

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