Jessie Kuthi v Elias Thathi M’njunge & another [2009] KECA 344 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal because it was filed with a decree the judge never approved — always appeal on the settled decree.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appeal was filed outside the sixty-day period prescribed by Rule 81(1) of the Court of Appeal Rules and whether the certificate of delay cured the delay
- 2.Whether failure to annex the registrar's certificate of delay to the memorandum of appeal or to show service of the letter applying for proceedings on the respondent rendered the appeal defective
- 3.Whether the decree in the record of appeal, extracted without the Judge settling the disputed draft decree, rendered the appeal incurably defective and liable to be struck out
Key legal issues
#Timeliness of lodging the record of appeal and the effect of a certificate of delay
The complaint on timeliness fails because a certificate of delay issued by the Deputy Registrar shows the proceedings were applied for on 31st July, 2007 and made available on 27th September, 2007, and the style or wording of the certificate cannot affect its validity.
The record was lodged on 27th November, 2007, beyond sixty days from the notice of appeal, but the proviso to Rule 81 excludes time during which proceedings are being prepared. The certificate of delay, though unhappily worded, established the dates of application and availability of the proceedings, bringing the appeal within time.
Compliance with Rule 81 formalities regarding annexure and service of the letter applying for proceedings
There is no rule requiring the certificate of delay to be annexed to the memorandum of appeal, nor any rule prescribing service of the letter applying for proceedings; sending a copy to the respondent satisfies the proviso to Rule 81.
The Court examined the Rules and found no provision mandating annexure of the certificate to the memorandum or formal service of the letter. The copy in the replying affidavit bore a rubber stamp showing receipt at the respondent counsel's office on 1st August, 2007, confirming dispatch. Grounds (a) and (b) were therefore rejected.
Validity of the decree in the record of appeal where the parties disputed the draft decree
Where parties disagree on a draft decree and the dispute is referred to the Judge for settlement under Order 20 Rule 7, filing an appeal using a decree approved only by the Deputy Registrar produces an invalid decree and renders the appeal incurably defective.
It was agreed that the parties disagreed on the draft decree and the disagreement was resolved by the Judge, but the appellant filed the appeal using the Deputy Registrar-approved decree rather than awaiting the Judge's settled decree. The record therefore lacked the lawful decree, and an appeal founded on an invalid decree is incurably defective and can only be struck out.
Legal principles established
#- There can only be one decree from one judgment; an appeal founded on a decree that was not settled and approved by the Judge where the parties disputed the draft decree is incurably defective and must be struck out.
- No rule requires a certificate of delay to be annexed to the memorandum of appeal, nor that the letter applying for proceedings be served on the respondent; sending a copy of the letter to the respondent suffices under the proviso to Rule 81.
Court orders
#- 1.The notice of motion dated 17th January, 2008 and lodged in court on 18th January, 2008 is allowed
- 2.Civil Appeal No. 271 of 2007 is struck out
- 3.Costs of the motion awarded to the applicants
- 4.No order as to the costs of the struck out appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Embu
- H.C.C.C. No. 6 of 1995
- Jurisdiction invoked
- Appellate jurisdiction over an appeal from the High Court; motion brought under Rule 80 of the Court of Appeal Rules
Relief refused
#Costs of the struck-out appeal
The Court declined to award costs of the appeal itself, confining costs to the striking-out motion
Costs
Costs of the motion awarded to the applicants; no order as to the costs of the struck out appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
There can be only one decree from one judgment and in this matter the decree in the record is not the one which was settled and approved by the Judge.
The decree in the record is accordingly an invalid one and that being the position Civil Appeal No. 271 of 2007 is incurably defective and can only be struck out.
There is no rule requiring that the certificate of delay be annexed to the memorandum of appeal.
In the event, we allow the notice of motion dated 17th January, 2008 and lodged in court on 18th January, 2008 with the result that Civil Appeal No. 271 of 2007 is hereby struck out.
Issues in the judgment
#The cause title describes Jessie Kuthi as 'APPLICANT/RESPONDENT' and the M'Njunge brothers as 'RESPONDENTS/APPELLANTS', yet the body shows the M'Njunge brothers as the applicants moving to strike out the appeal lodged by Jessie Kuthi, the respondent - the roles in the caption are inverted relative to the body of the ruling.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jessie Kuthi v Elias Thathi M’njunge & another [2009] KECA 344 (KLR)", Case Analysis (2009). Civil Appeal (Appli) 271 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/344/eng@2009-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.