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Court of AppealStruck OutCivil Appeal (Application) No. 288 of 2017· [2020] KECA 162 (KLR)

N. P. R Warren & 8 others v Christopher Musyoka Musau [2020] KECA 162 (KLR)

Court of Appeal
20 November 2020
RNR. N. NambuyeHOHannah OkwenguJMJ. Mohammed
2,365 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal struck out an appeal filed years late without leave, confirming that choosing review over appeal means giving up your right to appeal.

What this practically means

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Executive summary

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This was an application by the respondent, Christopher Musyoka Musau, under Rules 42 and 104(b) of the Court of Appeal Rules, 2010, for leave-granted objection to the competence of the appeal by the nine appellants, partners practising as Daly & Figgis Advocates, arising from a judgment and decree of the High Court (Odunga, J.) dated 20th September 2012 in Nairobi HCCC No. 1100 of 2003 (OS). The application was undefended, but the court determined it on its merits. It found three fatal defects: the record of appeal omitted the certified copy of the decree required by Rule 87(1)(h) in the absence of any Rule 87(3) directions; the record was anchored on a notice of appeal filed on 15th May 2017, years after the impugned judgment and without leave under Rule 4, the original notice of appeal of 2nd October 2012 having been withdrawn in favour of review; and the respondents, having successfully elected and exhausted review of the judgment (which review was later set aside on appeal by this Court on 12th May 2017), could not as of right revert to the direct appellate process. The court applied its earlier expositions in the Wanyonyi and African Airlines cases on the competing rights of review and appeal. The application was allowed, the record of appeal dated and filed 16th August 2017 was declared incompetent and struck out, with costs of both the application and the appeal awarded to the applicant. The ruling binds subordinate courts and the High Court on the mandatory contents of records of appeal and the finality of an election for review over appeal.

Key legal issues

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01

Mandatory contents of a record of appeal under Rule 87(1)

Holding

A certified copy of the decree is a primary document that must be included in the record of appeal; absent Rule 87(3) directions excluding it, non-compliance vitiates the record.

Reasoning

Rule 87(1)(h) expressly lists a certified copy of the decree among the primary documents of a record of appeal. The only qualification is Rule 87(3), which allows a judge or registrar of the court appealed from, on application, to direct exclusion of certain documents. No such directions were given here, and the omission was uncontroverted, so the record as filed was vitiated.

p. 2
02

Validity of a record of appeal anchored on a late notice of appeal filed without leave

Holding

An appeal against a judgment of 20th September 2012 must rest on a notice of appeal filed within fourteen days or on one filed out of time with leave under Rule 4; a notice filed on 15th May 2017 without leave cannot support the record.

Reasoning

Rule 75(1) and (2) require a notice of appeal to be lodged within fourteen days of the decision. The respondents' original notice was withdrawn in favour of review, so the appellate process was abandoned. The later notice of 15th May 2017 was filed years after the decision and without the benefit of any Rule 4 extension; once it is vitiated, no valid record of appeal exists.

p. 3
03

Whether a party who exhausted review may revert to appeal

Holding

No. The right of review, once elected and exhausted, displaces the right of direct appeal against the same judgment, even if the review ruling is later reversed on appeal by the other party.

Reasoning

Relying on Attorney General & Others v Wanyonyi and African Airlines International Ltd v PTA Bank, the court held that review and direct appeal are competing rights; where review is invoked earlier and pursued to conclusion, the party cannot revert to the abandoned appellate process. The subsequent reversal of the review ruling at the applicant's instance does not revive the respondents' lapsed appellate right.

p. 3

Legal principles established

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  • A respondent may not raise an objection to the competence of an appeal under Rule 104(b) without leave of the Court.
  • In the absence of directions under Rule 87(3) excluding documents, inclusion of all documents enumerated in Rule 87, including a certified copy of the decree, is mandatory and non-compliance vitiates the record of appeal.
  • A record of appeal must be anchored on a valid notice of appeal filed within fourteen days of the decision or on a notice filed out of time with leave under Rule 4; once the notice of appeal is vitiated there is no valid record of appeal.
  • A party who successfully elects and exhaustively pursues review of a judgment cannot thereafter revert to the direct appellate process against that judgment as of right, even if the review order is subsequently reversed on appeal at another party's instance.

Court orders

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  1. 1.Application dated 18th December 2019 is allowed
  2. 2.Costs of the application to the applicant
  3. 3.The record of appeal dated 16th August 2017 and filed in court on the same date is found incompetent and struck out
  4. 4.Costs of the appeal to the applicant

Authorities

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Legislation

  • Court of Appeal Rules, 2010Rule 4
  • Court of Appeal Rules, 2010Rule 42
  • Court of Appeal Rules, 2010Rule 75(1)
  • Court of Appeal Rules, 2010Rule 75(2)
  • Court of Appeal Rules, 2010Rule 77
  • Court of Appeal Rules, 2010Rule 84
  • Court of Appeal Rules, 2010Rule 87(1)
  • Court of Appeal Rules, 2010Rule 87(1)(h)
  • Court of Appeal Rules, 2010Rule 87(3)
  • Court of Appeal Rules, 2010Rule 97
  • Court of Appeal Rules, 2010Rule 104(b)
  • Civil Procedure RulesOrder 45 rule 1(1)
  • Civil Procedure RulesOrder 45(2)

Cases cited (4)

  • The Hon Attorney General, Chief of Defence Forces and Army Commander Kenya Army v David Wanyonyi
    Misc. Application No. 66 of 2016 (UR. 52/2016)
  • African Airlines International Limited v Eastern & Southern African Trade & Development Bank (PTA Bank)
    [2003] KLR 140
  • Origo & Another v Mungala
    [2005] 2 KLR 307
  • Harris Horn Senior, Harris Horn Junior v Vijay Morjaria
    Nyeri Civil Appeal No. 223 of 2007
On appeal from
High Court of Kenya
Nairobi HCCC No. 1100 of 2003 (OS)
Jurisdiction invoked
Rules 42 and 104(b) of the Court of Appeal Rules, 2010, the application having been filed pursuant to leave of the Court granted on 4th December 2019

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "N. P. R Warren & 8 others v Christopher Musyoka Musau [2020] KECA 162 (KLR)", Case Analysis (2020). Civil Appeal (Application) No. 288 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/162/eng@2020-11-20

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