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Court of AppealPartially AllowedCivil Appeal (Appli) 254 of 2007· [2009] KECA 213 (KLR)

BEVERLY WAMBURI KINGORI v KIPROTICH ARAP TOO [2009] KECA 213 (KLR)

Court of Appeal of Kenya
17 July 2009
EOE. O. O'KubasuPWP. N. WakiAVAlnashir Visram
1,588 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that self-represented litigants must follow court rules just like lawyers, and struck out an appeal filed with multiple procedural defects.

What this practically means

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Executive summary

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By notice of motion dated 12th November 2007 under Rules 42 and 80 of the Court of Appeal Rules, Beverly Wamburi Kingori sought to strike out the notice of appeal and record of appeal filed by Kiprotich Arap Too against a High Court ruling of 7th June 2007 (Kariuki, J.) which quashed an award of the Lukuyani Land Disputes Tribunal that had been adopted by the court. The applicant advanced six grounds: absence of primary documents in the record, out-of-time filing of the notice and record, an irregular certificate of delay, failure to serve all affected parties including the Tribunal, non-compliance with Rule 85, and a notice of appeal filed in person by a litigant who had been represented without a notice of intention to act in person. At the hearing the respondent's counsel conceded substantially all the defects but urged that the appellant had been acting in person. The Court of Appeal (O'Kubasu, Waki and Visram, JJA) rejected that submission, holding that the rules of the Court apply to represented and unrepresented parties alike and must be obeyed, endorsing the Privy Council's dictum in Ratman v Kumaraswamy that the rules must prima facie be obeyed and that extension of time requires material on which discretion can be exercised. The court described the concessions as a litany of defects, allowed the application, and struck out the notice of appeal and record of appeal with costs of the application and of the struck out appeal.

Key legal issues

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01

Whether procedural defects and non-compliance with the Court of Appeal Rules can be excused on the ground that the appellant acted in person

Holding

No. The rules apply to all litigants alike; acting in person is no excuse for non-compliance.

Reasoning

The court catalogued the concessions: out-of-time filing, invalid certificate of delay, missing primary documents, defective notice of appeal filed without a notice of intention to act in person. Counsel urged that the appellant being in person excused these defects. The court rejected that line of thinking, holding that the rules must be obeyed by all parties, and endorsed the Privy Council's dictum in Ratman v Kumaraswamy that the rules must prima facie be obeyed.

p. 3

Legal principles established

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  • The Court of Appeal Rules apply equally to represented and unrepresented parties, and non-compliance with the rules as to filing and service of notices and records of appeal justifies striking out the appeal.

Court orders

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  1. 1.The application dated 12th November 2007 seeking the striking out of the notice of appeal and record of appeal is granted
  2. 2.The notice of appeal and record of appeal are struck out
  3. 3.Costs of the application and costs of the struck out appeal are awarded to the applicant

Authorities

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Legislation

  • Court of Appeal RulesRule 42
  • Court of Appeal RulesRule 80
  • Court of Appeal RulesRule 81 (proviso)
  • Court of Appeal RulesRule 85
  • Court of Appeal RulesRule 13(5)

Cases cited (1)

  • RATMAN V. CUMARASAMY
    [1964] 3 All E.R. 933
On appeal from
High Court of Kenya at Kakamega
H.C. Misc. Appl. No. 88 of 1988 (dated 7th June 2007)
Jurisdiction invoked
Rules 42 and 80 of the Court of Appeal Rules (application to strike out notice of appeal and record of appeal)

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, "BEVERLY WAMBURI KINGORI v KIPROTICH ARAP TOO [2009] KECA 213 (KLR)", Case Analysis (2009). Civil Appeal (Appli) 254 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/213/eng@2009-07-17

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