Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealStruck OutCivil Appeal 7 of 1983

MUNICIPAL COUNCIL OF KITALE vs NATHAN FEDHA [1983] KECA 4 (KLR)

Court of Appeal
23 November 1983
KNKnellerHAHancoxPLPlatt
2,620 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal struck out an appeal because a copy of the decree was missing from the record — lawyers must file complete, timely appeal records.

What this practically means

#

Executive summary

#
This ruling of the Court of Appeal at Nairobi (Kneller, Hancox and Platt, Ag. JJ.A.) dealt with three consolidated motions arising as preliminary matters in Civil Appeal 7 of 1983, an appeal by the Municipal Council of Kitale against a High Court judgment at Eldoret (Mbaya, J) dated December 1, 1982 in Civil Suit 106 of 1981. The appellant sought leave to include a copy of the High Court decree in its record of appeal, filed February 2, 1983 without it, and separately sought extension of time for serving its notice of appeal, which was served three days out of time. The respondent moved to strike out the notice and record of appeal. Kneller JA, in the leading ruling, held that the omission of the decree was due to the appellant's advocate's oversight, which does not normally constitute 'sufficient reason' under rule 4, and that once the record was filed the extra 21 days attributable to the registry's delay were extinguished; the omission could not be cured by a supplementary record, following Kiboro v P & TC. The appellant also failed the second hurdle: it did not provide a sufficient statement of the nature of the judgment and grounds of appeal to enable the court to assess injustice. Hancox JA agreed, adding that a respondent without locus standi under rule 80 may apply under rule 42. Platt Ag JA held that inclusion of the decree is mandatory under rule 85(1) and its absence rendered the appeal incompetent. The appellant's motions were refused with costs; the respondent's motion was allowed and the notice and record of appeal were struck out with costs. The decision below was not disturbed.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appellant should be granted leave to include a copy of the High Court decree in the record of appeal filed without it
  2. 2.Whether the respondent's motion to strike out the notice of appeal and the record of appeal should be allowed
  3. 3.Whether the time for serving the notice of appeal should be extended

Key legal issues

#
01

Whether an advocate's oversight amounts to 'sufficient reason' for extension of time under rule 4

Holding

Normally it does not; the appellant failed to establish sufficient reason and failed the first hurdle.

Reasoning

The advocate admitted the omission of the decree from the record was due to his oversight; he kept no note of the judgment and did not check it in the registry. The court distinguished the very special class of case where a party exercises all due diligence but the High Court fails to supply copies in time, holding this was not such a case.

p. 2
02

Whether a missing copy of the decree in the record of appeal can be cured by a supplementary record

Holding

No; once the record was filed the extra 21 days were extinguished and the omission of a document that should have been in the original record cannot be cured by supplementary filing.

Reasoning

Following Kiboro v P & TC, the court held that a supplementary record cannot comprise documents which ought to have been included in the original record of appeal after the prescribed time has ended; the only remedy is a fresh application under rule 4, which was not made.

p. 2
03

Whether the respondent's objections justified striking out the notice and record of appeal

Holding

Most objections (address for service, certificate of delay, proof of service) were without merit, but the absence of a copy of the decree from the record required the appeal to be struck out.

Reasoning

The court found the delay in service of the notice of appeal satisfactorily explained; the addresses were known to the respondent; the certificate of delay was not specifically required by any rule; and the record was served in time under rule 87(1). However, rule 85(1) mandatorily required a copy of the decree, whose absence rendered the appeal incompetent.

p. 5

Legal principles established

#
  • An advocate's oversight does not normally constitute 'sufficient reason' for extending time under rule 4.
  • A document that ought to have been in the original record of appeal cannot be added by way of supplementary record after the time for filing the complete record has expired.
  • A party applying to extend time must support the application with a sufficient statement of the nature of the judgment and reasons for desiring to appeal, so the court can assess whether refusal would cause injustice.
  • Inclusion of a copy of the decree in the record of appeal is a mandatory requirement under rule 85(1), and its omission renders the appeal incompetent.
  • Where the time taken by the High Court registry to prepare a copy of the proceedings is excluded under the proviso to rule 81(1), the complete record must be filed within the remaining time once the record is filed, extinguishing the extended period.
  • A respondent with no locus standi to strike out an appeal under rule 80 for want of service of the notice of appeal may apply instead under rule 42.

Court orders

#
  1. 1.The appellant's motion on notice of February 10, 1983 is refused with costs
  2. 2.The respondent's motion on notice filed on March 8, 1983 is allowed with costs
  3. 3.The appellant's motion on notice of March 18, 1983 is rejected with costs
  4. 4.The notice and record of appeal are struck out with costs

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

KN
majority

Wrote the judgment

Dealt with all three consolidated motions chronologically; refused the appellant's motion for leave to include the decree in the record and the motion to extend time for service of the notice of appeal; allowed the respondent's motion to strike out.

The result of all this, in my view, should be, briefly, (1) The appellant's motion on notice of February 10, 1983 is refused with costs;p. 3
HA
concurring

Wrote the judgment

Agreed with Kneller JA's proposed orders and costs; added that a respondent without locus standi under rule 80 for want of service may still apply under rule 42, citing Ruthibo v Nyingi.

if a Respondent has no locus standi to apply to strike out by motion rule 80, because he has not been served with a copy of the Notice of Appeal, then he can do so under rule 42, as was stated recently in Taracisio Githaiga Ruthibo v Mbuthia Nyingi, Civil Appeal No 21 of 1982.p. 4
PL
PlattAg. JA
concurring

Wrote the judgment

Concurred that the record of appeal was defective for want of a copy of the decree, rendering the appeal incompetent; held the decree could not be added by supplementary record and only a fresh rule 4 application could cure it; found it unnecessary to determine the other motions.

it is clear that the record of appeal id defective in a manner which renders the appeal incompetent.p. 5
On appeal from
High Court of Kenya at Eldoret
Civil Suit 106 of 1981
Jurisdiction invoked
Court of Appeal Rules (rules 1(3), 4, 42(1), 44, 74, 76(1), 80, 81(1), 85(1), 87(1))

Relief refused

#

Leave to include a copy of the High Court decree in the record of appeal

The omission was due to the appellant's advocate's oversight, which does not constitute 'sufficient reason' under rule 4, and the decree could not be added by supplementary record once the record had been filed.

p. 2

Extension of time for serving the notice of appeal

Although the delay in service was satisfactorily explained, the court lacked the material (an outline of the judgment and grounds of appeal) needed to exercise its discretion to extend time.

p. 3

Costs

The appellant's motion of February 10, 1983 refused with costs; the respondent's motion of March 8, 1983 allowed with costs; the appellant's motion of March 18, 1983 rejected with costs; the notice and record of appeal struck out with costs.

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

He admits this defect in the record was due to his oversight. Normally this does not constitute 'sufficient reason' for applying rule 4.
p. 2Extension of time - sufficient reason
because it was a document he should have had in the record in the first place the omission cannot be cured by filing it in a supplementary record.
p. 2Supplementary records
it is a mandatory requirement under rule 85(1) of the Rules of this Court, to include a copy of the decree.
p. 5Mandatory contents of record of appeal
This is not a case where the appellant has exercised all due diligence but could not lodge a complete record in the time because the High Court did not supply him with the necessary copies needed to complete it in time, which is a very special class of case.
p. 2Due diligence exception
The result of all this, in my view, should be, briefly, (1) The appellant's motion on notice of February 10, 1983 is refused with costs;
p. 3Final orders
(4) the notice and record of appeal are struck out with cost.
p. 3Final orders - striking out
It follows what the appeal is incompetent and must be struck out.
p. 5Incompetency of appeal

Issues in the judgment

#
minor

The coram lists only three judges (Kneller, Hancox, Platt) and three rulings were delivered, but the final order in Kneller JA's ruling states only 'Hancox JA agrees there will be orders accordingly'; Platt JA's concurrence on the orders is implicit rather than expressly recorded in Kneller's disposition.

minor

There is an apparent discrepancy within the judgment as to whether the respondent's motion should succeed on service-related grounds: Kneller JA says none of the service objections should have persuaded the court to strike out, yet finds the second motion 'should succeed' on the absence of the outline of the judgment and grounds of appeal, before ultimately allowing the motion on the missing decree.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (2)

#

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

Cite this brief

#

Cite this brief

Caselaw, "MUNICIPAL COUNCIL OF KITALE vs NATHAN FEDHA [1983] KECA 4 (KLR)", Case Analysis (1983). Civil Appeal 7 of 1983. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1983/4/eng@1983-11-23

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