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Court of AppealDismissedCivil Appeal (Application) No. 8 of 2017· [2017] KECA 496 (KLR)

Peter Obwogo O & 2 others v H O Suing as Next Friend of P O (Minor) & another [2017] KECA 496 (KLR)

Court of Appeal of Kenya
15 June 2017
EGE. M. GithinjiHOHannah OkwenguJMJ. Mohammed
1,481 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to strike out an appeal over an uncertified decree, holding that procedural defects can be fixed when they do not block real justice.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Eldoret on a within-appeal application under Rule 84 of the Court of Appeal Rules by the respondents in Civil Appeal No. 8 of 2017, seeking to strike out the appeal and record of appeal. The appeal arose from the High Court at Kitale (Chemitei, J.), which had dismissed a constitutional petition alleging breach of a form-three student's rights through his suspension and denial of re-admission. Two grounds were advanced: the decree in the record was uncertified, contrary to Rule 87(1)(h), and the appellant had filed the record and memorandum of appeal in person although the notice of appeal had been filed by his former advocates. The court held that although Rule 84 confers a discretion to strike out an appeal where an essential step is omitted, that discretion must be exercised judicially and guided by Article 159(2)(d), which requires justice to be administered without undue regard to procedural technicalities. The uncertified decree was a curable defect, since the copy bore the Deputy Registrar's signature and conformed with the judgment; Rule 88 permits the omission to be cured by a supplementary record, and any prejudice could be met by costs. On the second ground, the court held that the Rules do not require leave for a party to file the record in person or through a different advocate; Rule 23(1) only requires a notice of change, which could not apply between the notice of appeal and the memorandum of appeal. The application was dismissed, the appellant was granted ten days to file a supplementary record, and the appellant was ordered to pay the respondents' taxed costs forthwith.

Key legal issues

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01

Uncertified decree in the record of appeal

Holding

The absence of certification of the decree was a curable procedural technicality; the appellant was granted leave to file a supplementary record

Reasoning

Rule 87(1)(g) and (h) require a judgment or order and the certified decree in the record, and Rule 88 permits omissions to be cured by a supplementary record. The decree in the record bore the Deputy Registrar's signature and conformed with the judgment; nothing suggested the appellate court would be handicapped. Article 159(2)(d) required the court to disregard the technicality, and any prejudice could be compensated by costs.

p. 3
02

Filing record of appeal in person where the notice of appeal was filed by an advocate

Holding

This does not render the record of appeal defective; no leave of the court is required

Reasoning

Rule 75(1) allows any person who desires to appeal to file a notice of appeal, and the Rules do not prohibit a change to acting in person or to a different advocate. Rule 23(1) merely requires a notice of change, which could not be pegged to any proceedings between the notice of appeal and the memorandum of appeal. No rule requires an application for leave, and requiring one would defeat the intendment of the rules.

p. 3

Legal principles established

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  • Procedural rules should not, in appropriate cases, impede substantial justice, and the discretion to strike out an appeal under Rule 84 must be exercised judicially in the circumstances of each case
  • The omission of a certified decree from a record of appeal is a procedural technicality curable by a supplementary record where it does not impede the appellate court's determination
  • The Court of Appeal Rules do not prohibit a party who was represented below from filing the record of appeal in person or through a different advocate; the only requirement is a notice of change under Rule 23(1)

Court orders

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  1. 1.The application to strike out the appeal and record of appeal is dismissed
  2. 2.The appellant is given leave to file a supplementary record of appeal within ten days from the date of the ruling
  3. 3.The costs of the application shall be taxed and paid forthwith to the respondents by the appellant

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Court of Appeal Rules, 2010Rule 84
  • Court of Appeal Rules, 2010Rule 87(1)
  • Court of Appeal Rules, 2010Rule 87(1)(g)
  • Court of Appeal Rules, 2010Rule 87(1)(h)
  • Court of Appeal Rules, 2010Rule 88
  • Court of Appeal Rules, 2010Rule 75(1)
  • Court of Appeal Rules, 2010Rule 75(3)
  • Court of Appeal Rules, 2010Rule 23(1)
  • Court of Appeal Rules, 2010Rule 2
  • Court of Appeal Rules, 2010Rule 18
  • Court of Appeal Rules, 2010Rule 5(2)(b)
On appeal from
High Court of Kenya at Kitale
High Court Petition No. 15 of 2015
Jurisdiction invoked
Rule 84 of the Court of Appeal Rules, 2010 (application within a pending appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Peter Obwogo O & 2 others v H O Suing as Next Friend of P O (Minor) & another [2017] KECA 496 (KLR)", Case Analysis (2017). Civil Appeal (Application) No. 8 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/496/eng@2017-06-15

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