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Court of AppealPartially AllowedCivil Applications Nos. NAI 122 of 1997 and NAI 123 of 1997· [1997] KECA 196 (KLR)

Machakos Ranching Company Limited v Joseph Kyalo Mutiso & another [1997] KECA 196 (KLR)

Court of Appeal of Kenya
21 October 1997
ASA. B. Shah
939 words in judgment
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The bottom line

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Kenya's Court of Appeal revived struck-out appeals, ruling that minor procedural mistakes cannot block justice when no one is actually prejudiced.

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 (Shah JA) delivered at Nairobi on 21 October 1997 on two consolidated applications by Machakos Ranching Company Limited, against different respondents (Joseph Kyalo Mutiso and Waema Itumo Muoka), seeking refiling or readmission of Civil Appeals Nos. 96 and 98 of 1996, which had been struck out on 22 May 1997 by Kwach, Akiwumi and Pall JJ.A because the dates on the copies of the orders appealed against did not coincide with the dates of certification and filing. The respondents' counsel raised a preliminary objection that the applications were incompetent because the tenth line of each page was not numbered on the margin. The court overruled the objection, holding that although Rule 13(5) makes such numbering mandatory, it exists for convenience, and where no prejudice is caused the application must be heard; non-fundamental procedural non-compliance cannot justify striking out, since rules of procedure are 'good servants but bad masters'. The court followed Upjohn LJ in In re Pritchard Decd on preferring substance over form. On the merits, the applicant had moved with alacrity - notices of appeal were filed the day after the striking out and the applications the following Monday - and the appeals were of importance as nearly thirty further cases might depend on them. The applications were allowed: the notices of appeal filed on 23 May 1997 were deemed filed in time, records of appeal were to be filed within 21 days, and the respondent was awarded costs assessed at shs.4,000/= for both applications, payable within 21 days failing which execution could issue.

Key legal issues

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01

Whether failure to number the tenth line of each page renders an application incompetent

Holding

No - the requirement is for convenience and, absent prejudice, the objection fails

Reasoning

Rule 13(5) makes line-numbering mandatory, but the rule serves the convenience of the Court and Counsel. Where the objector concedes no prejudice, striking out would be to stand on technicalities. The court adopted the English approach of preferring substance over form, citing Upjohn LJ in In re Pritchard, and held the defect not fundamental, so the application should be heard on the merits.

p. 2
02

Whether extension of time and refiling of the struck-out appeals should be granted

Holding

Yes - the applicant moved with alacrity and the court exercised its discretion in its favour

Reasoning

The appeals were struck out on 22nd May 1997; notices of appeal were filed the next day and the applications the following Monday. The applicant's promptness, and the importance of the intended appeals (nearly 30 further cases may depend on the result), justified the exercise of discretion to extend time, deem the notices filed in time, and direct filing of records within 21 days.

p. 2

Legal principles established

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  • Non-compliance with procedural rules that is not fundamental and does not go to jurisdiction cannot justify striking out an application; courts should do justice undeterred by technicalities
  • Where a procedural defect causes no prejudice to the objector, the application ought to be sustained and heard

Court orders

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  1. 1.The preliminary objection on the numbering of the tenth line is overruled and dismissed
  2. 2.The applications are allowed
  3. 3.The Notices of Appeal filed on 23rd May, 1997 are deemed to be filed in time as extended
  4. 4.The records of appeal be filed within the next 21 days
  5. 5.Costs of the applications assessed at shs.4,000/= for both applications, payable by the applicant to the respondent's advocate within 21 days failing which execution may issue
  6. 6.This ruling to be included in the new records of appeals

Authorities

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Legislation

  • Court of Appeal RulesRule 13(5)

Cases cited (1)

  • In re Pritchard Decd
    (1963) 2 W.L.R. 685
On appeal from
Court of Appeal of Kenya
Civil Appeals Nos. 96 of 1996 and 98 of 1996
Jurisdiction invoked
Inherent discretion of the Court of Appeal under its Rules (Rule 13(5) discussed) to extend time and deem notices of appeal filed; refiling of struck-out appeals

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, "Machakos Ranching Company Limited v Joseph Kyalo Mutiso & another [1997] KECA 196 (KLR)", Case Analysis (1997). Civil Applications Nos. NAI 122 of 1997 and NAI 123 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/196/eng@1997-10-21

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