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Court of AppealAllowedCivil Application No. NAI. of 1997 (arising from Civil Appeal No. 182 of 1994)· [1997] KECA 192 (KLR)

UNION LIMITED v PHILIP NZUKI

Court of Appeal of Kenya
6 May 1997
ASA.B. Shah
0 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a litigant whose appeal was struck out can restart the appeal by promptly applying for an extension of time.

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 (A.B. Shah, JA) delivered at Nairobi on 6th May 1997 on an application for extension of time under Rule 4 of the Court of Appeal Rules. The applicant's appeal, Civil Appeal No. 182 of 1994 filed on 17th November 1994, was struck out on 9th December 1996 because the record of appeal lacked a certified copy of the decree, contrary to Rule 85(1)(h). The omission was an error by the applicant's then advocates, Mulwa & Mulwa; the certified decree was obtained by the incoming advocates, A.H. Malik & Co., on 13th January 1997, and the application was filed on 30th January 1997. The respondent opposed, arguing the new advocates had been instructed since April 1995 and should have rectified the error, that a supplementary record should have been used, and that the decretal sum had been paid. The court held the delay was not inordinate, that an incompetent appeal cannot be withdrawn so no remedial steps were available, that Rule 85(2A) does not permit a certified decree to be added by supplementary record, and that payment of the decretal sum does not extinguish the right of appeal. Following Jedida Alumasa & 3 others v S.S. Kesitany, the court allowed the application, ordering the notice of appeal to be filed within seven days and the record of appeal within 21 days thereafter, with costs of the application to abide the result of the intended appeal.

Key legal issues

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01

Extension of time after an appeal has been struck out

Holding

The court exercised its discretion under Rule 4 to extend time, holding the delay in bringing the application after the striking out was not inordinate.

Reasoning

The appeal was struck out on 9th December 1996 for want of a certified copy of the decree. The application was filed on 30th January 1997, which the court found not so inordinately long as to deny the applicant the benefit of its undoubted discretion under Rule 4. The applicant's advocates' error in omitting the decree was acknowledged, and the applicant came to court promptly after obtaining the certified decree.

p. 1
02

Non-compliance with Rule 13(5) marking requirements

Holding

Failure to mark every 10th line in the application was not fatal to the application, particularly where the point was not pressed.

Reasoning

The respondent's counsel initially raised the absence of line markings required by rule 13(5) but did not argue the point. The court held that while compliance is necessary, the error was not fatal to the application.

p. 1
03

Whether a supplementary record could cure the missing decree

Holding

No - Rule 85(2A) does not permit a certified copy of the decree to be included by way of supplementary record, so the advocates could not have adopted that course.

Reasoning

The respondent argued the advocates should have sought leave to include the certified decree by supplementary record before the appeal was struck out. The court rejected this, holding the Rules do not allow that course, leaving extension of time and a fresh notice of appeal as the proper remedy.

p. 2

Legal principles established

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  • A litigant whose appeal has been struck out may restart the appellate procedures, provided the application for extension of time is made promptly.
  • An incompetent appeal cannot be withdrawn, so advocates could not have taken remedial measures such as withdrawing the appeal before seeking extension of time.
  • Payment of the decretal sum does not take away a right of appeal.
  • A certified copy of the decree appealed against cannot be included by way of a supplementary record of appeal under Rule 85(2A).

Court orders

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  1. 1.The notice of appeal be filed within the next seven days
  2. 2.The record of appeal be filed within 21 days thereafter
  3. 3.Costs of the application to abide the result of the intended appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 13(5)
  • Court of Appeal RulesRule 85(1)(h)
  • Court of Appeal RulesRule 85(2A)

Cases cited (1)

  • Jedida Alumasa & 3 others vs S.S. Kesitany
    Civil Application No. NAI 337 of 1996
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, "UNION LIMITED v PHILIP NZUKI", Case Analysis (1997). Civil Application No. NAI. of 1997 (arising from Civil Appeal No. 182 of 1994). Source:

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