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High CourtStruck OutHigh Court Civil Appeal (Migori) - Memorandum of Appeal dated 16/07/2019, arising from Rongo Resident Magistrate's Court Civil Suit No. 6 of 2015

Andrew Ogolla Maganda v South Nyanza Sugar Co. Ltd

High Court of Kenya
28 May 2020
2,231 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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If you appeal a court decision, you must have the official court order allowing you to appeal late, or your case will be dismissed.

What this practically means

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Executive summary

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The appellant, Andrew Ogolla Maganda, had sued South Nyanza Sugar Co. Ltd in Rongo Resident Magistrate's Court Civil Suit No. 6 of 2015, claiming Kshs. 1,316,250/= for loss of income after the respondent allegedly failed to harvest the plant crop under a Growers Cane Farming and Supply Contract dated 16/04/2007 over Plot No. 705, Field No. 11 in Kakmasia Sub-Location, Migori County. The respondent denied the existence of the contract and pleaded an alternative right to recoup sums expended. The trial court dismissed the suit with costs on 04/09/2018. On appeal to the High Court at Migori, Mrima J noted sua sponte that although the appeal was filed over ten months after judgment, the record contained no extracted order granting leave to appeal out of time, despite twin applications for extension of time having been filed in Migori High Court Misc. Civil Application No. 289 of 2018. The court analysed Sections 65(1) and 79G of the Civil Procedure Act and Order 42 Rule 13(4) of the Civil Procedure Rules, and relied on the Supreme Court's decision in Bwana Mohamed Bwana v Silvano Buko Bonaya to hold that an appeal lacking a complete record is incomplete and incompetent. The court held that Article 159(2)(d) of the Constitution could not save the appeal because it applies only to procedure or form, not substance. The appeal was struck out with costs. The underlying merits of the contract claim were never reached.

Key legal issues

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01

Competency of an appeal filed out of time without leave

Holding

The appeal, filed over 10 months post judgment without any extracted order granting leave to appeal out of time, was incomplete and incompetent and was struck out

Reasoning

Section 79G of the Civil Procedure Act requires appeals from subordinate courts to be filed within 30 days unless leave is granted. The twin applications for extension of time were never shown to have been allowed; no extracted order was on the record and the Memorandum of Appeal did not indicate it was filed pursuant to leave. Following Bwana Mohamed Bwana, an appeal without a complete record is incompetent.

p. 3
02

Whether Article 159(2)(d) could save the defective appeal

Holding

No - the overriding objective provision applies only to procedure or form, not substance

Reasoning

The court held that the saving grace of Article 159(2)(d) was inapplicable because the defect went to the substance and competency of the appeal, not mere procedure or form. The appellant also did not explain any difficulty in obtaining an extracted copy of the leave order if it had been issued.

p. 3
03

Documents that may not be dispensed with in a Record of Appeal

Holding

Under Order 42 Rule 13(4), a court may dispense with any document except the memorandum of appeal, the pleadings, the judgment, order or decree appealed from, and where appropriate the order giving leave to appeal

Reasoning

The court read Order 42 Rule 13(4) with its proviso to conclude that the order giving leave to appeal, where applicable, is among the documents that cannot be dispensed with, so its absence renders the record incomplete.

p. 3

Legal principles established

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  • An appeal filed out of time without leave, or without the order granting leave to appeal out of time on the record, is incomplete and incompetent and liable to be struck out
  • Article 159(2)(d) of the Constitution applies only to matters of procedure or form, not substance, and cannot save an incompetent appeal
  • A first appellate court must revisit the evidence, evaluate it and reach its own conclusion, but will not ordinarily interfere with findings of fact unless based on no evidence, a misapprehension of it, or wrong principles

Court orders

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  1. 1.The appeal is struck out with costs
On appeal from
Rongo Resident Magistrate's Court
Civil Suit No. 6 of 2015
Jurisdiction invoked
Section 65(1) of the Civil Procedure Act (appeals from subordinate courts to the High Court)

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, "Andrew Ogolla Maganda v South Nyanza Sugar Co. Ltd", Case Analysis (2020). High Court Civil Appeal (Migori) - Memorandum of Appeal dated 16/07/2019, arising from Rongo Resident Magistrate's Court Civil Suit No. 6 of 2015. Source: 

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