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Court of AppealDismissedCivil Appeal No. 196 of 2006· [2008] KECA 275 (KLR)

Sebastian Ben Aduordi v Attorney General [2008] KECA 275 (KLR)

Court of Appeal
9 May 2008
1,019 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a late appeal, confirming courts rarely excuse unexplained delays and that only a certified decree is needed to file.

What this practically means

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Executive summary

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The Court of Appeal at Nairobi (O'Kubasu, Githinji and Aganyanya JJA) dismissed an appeal against a ruling of the High Court (Kihara Kariuki J) dated 14 July 2006 refusing leave to appeal out of time against a subordinate court judgment of 16 June 2005, in which the appellant's claim for unlawful dismissal as a clerical officer by the Attorney General had been dismissed with costs. The appellant invoked Sections 3A, 79G and 95 of the Civil Procedure Act and Orders XLIV Rule 5 and L Rule 1 of the Civil Procedure Rules, arguing that the delay was occasioned by late supply of certified proceedings, the trial magistrate's leave, and his impecuniosity. The Court of Appeal affirmed the High Court on two bases. First, applying the Mbogo v Shah standard, it would not interfere with a discretionary order absent a misdirection or a manifestly wrong decision amounting to a miscarriage of justice; the grounds of appeal did not allege a wrong exercise of discretion. Second, on the merits, Order XLI Rule 1A requires only a certified copy of the decree to file a competent appeal, so the proceedings were not needed; moreover, the request for proceedings was made more than thirty days after judgment, and the leave application came roughly seven months after judgment. The inordinate delay was held not sufficiently explained. The appeal was dismissed with costs to the respondent on 9 May 2008.

Key legal issues

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01

Appellate interference with discretionary decisions of the High Court

Holding

The Court of Appeal will not disturb a discretionary order of the superior court unless the judge misdirected himself, arrived at a wrong decision as a result, or was clearly wrong with a resultant miscarriage of justice.

Reasoning

Adopting the Mbogo v Shah standard, the Court held that a discretionary ruling of the High Court attracts a high threshold of appellate interference. The appellant's grounds did not allege that the discretion was exercised wrongly. The judge had considered the reasons for the delay in the supporting affidavit and concluded they did not amount to good and sufficient cause, so there was no basis for interference.

p. 2
02

Whether delay in obtaining proceedings and judgment constitutes good and sufficient cause for filing an appeal out of time

Holding

No. Proceedings are not required to file a competent appeal; only a certified copy of the decree is needed, and the application for proceedings was itself made after the thirty-day period had expired.

Reasoning

The Judge had held, and the Court of Appeal agreed, that Order XLI Rule 1A permits filing of an appeal with only a certified copy of the decree, which may even be filed after the memorandum of appeal. The application for copies of proceedings and judgment was made more than thirty days after judgment, and the leave application came seven months after judgment and three months after proceedings were obtained. That inordinate delay was not sufficiently explained.

p. 2

Legal principles established

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  • An appellate court will not interfere with the exercise of discretion by the superior court unless the judge misdirected himself in some matter and as a result arrived at the wrong decision, or it is manifest from the case as a whole that the judge was clearly wrong in the exercise of his discretion and a miscarriage of justice has resulted.
  • Under Order XLI Rule 1A of the Civil Procedure Rules, an appellant requires only a certified copy of the decree to file a competent appeal; copies of the proceedings and judgment are not required, and the certified decree may be filed even after the memorandum of appeal.
  • Under Section 79G of the Civil Procedure Act an appeal from a subordinate court must be filed within thirty days of the decree, excluding any time certified as requisite for preparation of a copy of the decree; out of time, the court may admit the appeal only on good and sufficient cause shown.

Court orders

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  1. 1.The appeal was dismissed with costs to the respondent

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 95
  • Civil Procedure RulesOrder XLIV Rule 5
  • Civil Procedure RulesOrder L Rule 1
  • Civil Procedure RulesOrder XLI Rule 1A

Cases cited (1)

  • Mbogo v Shah
    [1968] EA 93
On appeal from
High Court of Kenya at Nairobi
H.C. Misc. Appl. No. 72 of 2006
Jurisdiction invoked
First appeal to the Court of Appeal from the High Court under the Civil Procedure Act/Civil Procedure Rules regime governing appeals from subordinate courts (Sections 79G and 95, Civil Procedure Act; Order XLIV Rule 5 Civil Procedure Rules)

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, "Sebastian Ben Aduordi v Attorney General [2008] KECA 275 (KLR)", Case Analysis (2008). Civil Appeal No. 196 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/275/eng@2008-05-09

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