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ELCAllowedCivil Appeal Nos. 8, 9 and 10 of 2019 (consolidated)· [2022] KEELC 2101 (KLR)

National Housing Corporation v Martin Ndapatana [2022] KEELC 2101 (KLR)

High Court of Kenya
19 January 2022
3,727 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court confirmed an appeal is filed in time once the memorandum of appeal is lodged within 30 days, even if the record follows later.

What this practically means

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Executive summary

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This is a consolidated appeal (Civil Appeal Nos. 8, 9 and 10 of 2019, consolidated on 26th July 2021) from the ruling of the trial Magistrate at Malindi dated 23rd July 2019 in CMCC Nos. 220, 230 and 231 of 2010. The appellant had sought in the lower court to dispense with the attendance of one David N. Ngugi, who swore an affidavit it wished to produce through PW1, on the ground that the maker could not be traced. The trial Magistrate dismissed that application, apparently on the view that the plaintiff sought more time to produce Ngugi, citing delay and section 33 of the Evidence Act. M.A. Odeny J framed three issues: whether the appeal was filed out of time, whether the record of appeal was incomplete, and whether the appeal had merit. The court found the memorandum of appeal was filed 29 days after the ruling, hence within time under Section 79G, adopting Francis Likhabila v Barclays Bank that the 30-day limit applies to the memorandum and not the record of appeal. On completeness, the court held that for an interlocutory appeal only the memorandum, pleadings and order appealed against are mandatory. On the merits, the court found the trial Magistrate misdirected herself on the prayers, wrongly applied section 33 instead of sections 35 and 34 of the Evidence Act, and that no prejudice would arise since the respondents could cross-examine PW1. The appeal was allowed as prayed, the affidavit held admissible, and the matter remitted to another Magistrate for hearing before a different Magistrate other than the one who made the impugned ruling.

Key legal issues

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01

Whether the appeal was filed out of time

Holding

The appeal was filed within time; the memorandum of appeal was filed 29 days after the ruling, and the 30-day limit applies to the memorandum, not the record of appeal.

Reasoning

The court noted the memorandum of appeal was filed on 21st August 2019, exactly 29 days after the ruling of 23rd July 2019. Relying on Francis Likhabila v Barclays Bank, it held that appeals are instituted by the memorandum of appeal and the record of appeal may be filed later, with no specific statutory timeline.

p. 4
02

Whether the record of appeal was incomplete and incompetent

Holding

The record was complete. In an interlocutory appeal only the memorandum of appeal, the pleadings and the order appealed against are mandatory, and the court may peruse the lower court file.

Reasoning

Order 42 Rule 13(4) permits the judge to dispense with documents not relevant save the memorandum, pleadings and the order appealed from. Since the appeal is against a ruling and PW1 had not completed her evidence, the notice of motion and response were the necessary pleadings; the court also had the benefit of the lower court file.

p. 4
03

Whether the trial Magistrate's ruling should be disturbed

Holding

The trial Magistrate misdirected herself on the actual prayers sought, wrongly applied section 33 of the Evidence Act instead of sections 35 and 34, and wrongly rejected the application to admit the affidavit.

Reasoning

The application sought dispensing with attendance of David N. Ngugi and admission of his affidavit, not more time to produce him. The affidavit was on record, the maker was untraceable, and the respondents retained the opportunity to cross-examine PW1; no prejudice was demonstrated. The affidavit's contents mirrored the plaint and documents already produced.

p. 5

Legal principles established

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  • Appeals to the High Court are instituted by filing a memorandum of appeal, which must be filed within 30 days under Section 79G; the record of appeal need not be filed contemporaneously and has no fixed statutory timeline.
  • For an interlocutory appeal against a ruling, the mandatory documents in the record of appeal are the memorandum of appeal, the pleadings and the order appealed against; the court may also peruse the lower court file.

Court orders

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  1. 1.The appeal is allowed as prayed
  2. 2.The affidavit sworn by David N. Ngugi would be admissible in evidence
  3. 3.The matter in the lower court to be remitted for hearing and determination before another Magistrate with jurisdiction other than the trial Magistrate who made the impugned ruling
On appeal from
Chief Magistrate's Court, Malindi
CMCC Nos. 220, 230 and 231 of 2010 (consolidated)
Jurisdiction invoked
Appellate jurisdiction over appeals from subordinate courts under Section 79G of the Civil Procedure Act, Cap 21 Laws of Kenya

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, "National Housing Corporation v Martin Ndapatana [2022] KEELC 2101 (KLR)", Case Analysis (2022). Civil Appeal Nos. 8, 9 and 10 of 2019 (consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2101/eng@2022-01-19

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