Murai & others v Wainaina (Civil Appeal 46 of 1977) [1978] KECA 26 (KLR)

the Civil Procedure Rules, and to section 66 of the Civil Procedure Act as regards right of appeal to this Court. He criticised the following extract from the O'Dell case, 22 EACA at page 182: The plain fact is that order XLII, rule 1(1)(o), does provide that any appeal from an adjudication on an originating summons under order XXXVI shall lie as of right as an appeal from an order, and it is impossible for this Court to go behind that... 3. In counsel's view, it was wrong of the Court to say this was “an appeal from an order” and that had the Court directed its mind to the relevant law it would have come to the conclusion that it was an appeal from a judgment as it finally determined the rights of the parties with regard to the matters in controversy. Counsel invited us not to follow that decision. In his submission by filing a judgment the appellants had complied with the Rules of this Court and, to that extent, if rule 85(1)(h) requires the filing of a decree in addition to the judgment in this case, that rule is ultra vires the Civil Procedure Act. 4. We do not think that it is necessary to decide the question whether the decision of the High Court in this case was an order or a judgment. The question at issue has been considered on a number of occasions in this Court. We would refer to two decisions which were not referred to us but which in our view put the matter beyond question. The first is Motel Schweitzer v Thomas Edward Cunningham (1955) 22 EACA 252. This case inter alia dealt with the construction of rule 56 of the Rules of the Court of Appeal for Eastern Africa, then in force. In so far as is relevant to this appeal that rule provided: If the intended appeal is against a decree or order it shall not be necessary that the decree or order be extracted before notice of appeal is filed but a decree or order shall in any event be extracted before an appeal is lodged. 5. In the course of his submissions Mr Le Pelley pointed out that rule 56 was difierent from the rule now in force. That is so; but the difierence is not relevant to this case. The Court said in the Motel case, 22 EACA at page 254: We do not accept Mr Salter's suggestion that so far as regards Kenya appeals from judgments leading to decrees, the word ‘decree' in rule 56 includes a judgment. We think it is quite clear that throughout the rules the words ‘decree' and ‘order' are used to signify the formal decree or order, as the case may be, which is the formal expression of the adjudication in question. 6 More recently the matter again cropped up in Kiboro v Posts & Telecommunications Corporation [1974] EA 155, which is the second case to which we would like to refer. More or less the same arguments were advanced in that case as have been put forward by Mr Le Pelley in this case. We would like to quote from the judgment of Dufius P a passage occurring at page 159 which, in our view, answers nearly all the points raised by Mr Le Pelley: Mr Muite argued, inter alia, that the appellant was entitled to proceed with the appeal without extracting the decree and that accordingly he could file the decree under rule 89 as there was no decree in existence when the record of appeal was filed. He relied on the proviso in the definition of a ‘decree' in section 2 of the Civil Procedure Act (cap 5) which states: ‘Provided that for the purpose of appeal the word “decree” shall include judgment and a judgment shall be appealable notwithstanding the fact that a formal decree in pursuance of such judgment may not have been drawn up or may not be capable of being drawn up'. He submitted that the appeal lay notwithstanding the fact that the decree had not been extracted and that as the decree had not been extracted it was impossible to file a copy of the decree in accordance with rule 85. https://new.kenyalaw.org/akn/ke/judgment/keca/1978/26/eng@1978-02-28 2

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I would refer here to section 25 of the Civil Procedure Act which makes a decree mandatory after a judgment has been pronounced. This section states inter alia: ‘25. The Court, after the case has been heard, shall pronounce judgment, and on such judgment a decree shall follow ...' Order XX, rule 7, provides fully for the preparation of a decree. This is done both in the 1972 amendment and in the former existing Rules. A decree sets out the formal expression of an adjudication and it follows as of right in accordance with the procedure set out in order XX and does not require any further adjudication. Rule 56 of the former East African Court of Appeal Rules specifically required that a decree be extracted before the appeal was lodged. This rule has not been re-enacted in the present Rules but the efiect of that rule was to ensure that the record was completed in order to comply with the former rule 62(4)(e) which is similar to the provisions of our present rule 85(1)(h). The efiect of rule 85(1)(h) is that a decree must be extracted and filed with the record of appeal. The proviso to section 2 of the Act does provide that a judgment ‘shall be appealable notwithstanding the fact that a formal decree in pursuance of such judgment may not have been drawn up or may not be capable of being drawn up but as this Court pointed out in the case of Schweitzer v Cunningham (1955) 22 EACA 252, the requirements of our Rules are procedural. Under the municipal law of Kenya a right of appeal exists as soon as judgment is delivered, but in order to pursue that right the appellant has to comply with the procedural requirements contained in the Rules of this Court. These Rules are prepared by virtue of and under the authority of section 8 of the Appellate Jurisdiction Act of Kenya. The preparation of a decree is a procedural requirement, just as are the other conditions which an appellant has to carry out in order to pursue his right of appeal. The proviso to section 2 of the Civil Procedure Act does not allow an appellant to pursue his right of appeal without regard to procedure. I agree therefore ... that the omission to file a decree is an irregularity which cannot be cured by filing the decree in a supplementary record but the Court does have the power to allow this to be done under rule 4. I also agree that the appellant has not given suficient reason for the extension of time under rule 4 ... 7. The Rules of this Court are now deemed to have been made under section 5 of the Appellate Jurisdiction Act 1977 and their efiect remains the same. Mr Le Pelley asked us to take two alternative courses if we find that the appellant failed to comply with the requirements of rule 85(1)(h) of the Rules of this Court. The first course is that we exercise the powers conferred on a judge or register of the High Court by rule 85(3) of those Rules and direct that the decree be excluded from the record of appeal. We do not agree. Exclusion of such an important document has always been fatal as there would be no basis to the appeal. Rule 85(3) is intended to exclude such material as may not be required for the determination of the appeal although it may have been produced in evidence. The decree is the formal expression of what has been decided between the parties and its exclusion would throw this Court back into trying to discover from the judgment what the decision of the lower court was. Alternatively we were invited by Mr Le Pelley to adjourn the appeal to enable him to file a decree to rectify the position. We note in this respect that the notice of motion raising the objection was filed on 2nd February 1978. We were informed that it was served on the appellants' counsel shortly thereafter. This notwithstanding, the appellants took no steps to rectify the position. An application for extension https://new.kenyalaw.org/akn/ke/judgment/keca/1978/26/eng@1978-02-28 3

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of time had to be extracted from counsel at the close of his submissions and no attempt was made to explain the failure to extract a decree. It has been held before that an error of law by itself on the part of counsel cannot constitute suficient reason for extension of time. In this case it does not appear that there was any mistake of law that a decree was not necessary because the record of appeal as originally filed contains a document which purports to be a decree. We were not persuaded that the failure to include the decree in the record is a mere technicality upon which the Court should not insist as all the parties to the appeal are Africans. It is not a mere technicality and we could not excuse non-compliance with a mandatory requirement on such a basis. Mr Le Pelley did not say which section of the Judicature Act he was relying on but, under section 3(2) of that Act, a Court is required to be guided by African Customary law in civil cases in which one or more of the parties is subject to, or afiected by, it and to decide such cases according to substantial justice without undue regard to technicalities of procedure. In the first place it is our view that that section concerns cases in which customary law is applicable. That is not the case here. Secondly, as far as the parties are concerned, it is to be noted that they were represented by eminent counsel. The section may well have been designed, in so far as it relates to procedural technicalities, to assist lay people appearing in person who may be totally ignorant of the intricacies of the law of procedure. 8. For these reasons we ordered the appeal to be struck out and gave costs to the respondent. DATAED AND DELIVERED AT NAIROBI THIS 28TH DAY OF FEBRUARY, 1978 …………………………… SIR JAMES WICKS CHIEF JUSICE …………………………… C.B. MADAN JUDGE OF APPEAL …………………………… S.W.W WAMBUZI JUDGE OF APPEAL I certify that this is a true copy of the original. DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/1978/26/eng@1978-02-28 4

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