ANDREW A APIYO vs MICHAEL M O MASHERE [1983] KECA 7 (KLR)
The bottom line
#The Court of Appeal struck out an appeal because the appellant's lawyer missed filing deadlines, confirming that a lawyer's own mistakes do not justify extending time.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appeal should be struck out for failure to serve the Notice of Appeal within the time prescribed by rule 76(1)
- 2.Whether the failure to serve the Memorandum of Appeal and the record of Appeal within seven days of lodgement, as required by rule 87(1), rendered the appeal incompetent
- 3.Whether breach of rule 85(1)(h), the omission of a certified copy of the order appealed against from the Record of Appeal, was fatal
- 4.Whether the appellant had shown sufficient cause under rule 4 to warrant extension of time to regularise the service defects
Key legal issues
#Whether extension of time under rule 4 could cure the admitted breaches of rules 76(1), 87(1) and 85(1)(h)
No. The appellant had to show sufficient cause for the failure to take the required steps timeously; the lapses were admitted to be counsel's own omission, which was not sufficient cause, so extension was refused and the appeal was struck out as incompetent.
The respondent objected that the Notice of Appeal, filed on 14th May 1982, was not served within seven days as required by rule 76(1), and that the Memorandum of Appeal and record, lodged on 14th July 1982, were not served within seven days as rule 87(1) required; service only occurred on 30th October 1982. There was also a breach of rule 85(1)(h) because the certified copy of the order appealed against was missing from the Record of Appeal. Counsel candidly conceded the breaches and sought extension of time. The court held that rule 4 relief requires sufficient cause, and an advocate's own omission does not meet that threshold.
The consequence of non-compliance with the service and content requirements of the Court of Appeal Rules
An appeal prosecuted in breach of rules 76(1), 87(1) and 85(1)(h) is incompetent and liable to be struck out, with costs to the respondent.
The court treated the cumulative non-compliance - late service of the Notice of Appeal, late service of the Memorandum of Appeal and record, and the absence of the certified copy of the order appealed against from the record - as rendering the appeal incompetent. Having declined the extension of time that would have regularised the defects, the only course open was to strike out the appeal and award the respondent his costs.
Legal principles established
#- An appeal will be struck out as incompetent where the Notice of Appeal is not served within the seven days prescribed by rule 76(1), the Memorandum of Appeal and record are not served within seven days of lodgement as required by rule 87(1), and the Record of Appeal omits the certified copy of the order appealed against as required by rule 85(1)(h), unless sufficient cause under rule 4 is shown for extension of time.
- Counsel's own omission in failing to take the procedural steps timeously does not constitute sufficient cause to justify extension of time under rule 4.
Court orders
#- 1.The appeal was ordered to be struck out as incompetent
- 2.Costs of the appeal were awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Eldoret
- Civil Case No. 111 of 1976
- Jurisdiction invoked
- Appellate jurisdiction under the Court of Appeal Rules (rules 76(1), 85(1)(h), 87(1) and rule 4 on extension of time)
Relief refused
#Extension of time so that the Notice of Appeal and Memorandum of Appeal would be deemed served within time, and extension to file the certified order out of time
Counsel for the appellant admitted the lapses were due to his own omission, which did not amount to sufficient cause under rule 4
Costs
The appeal is ordered to be struck out as incompetent, with costs to the respondent.
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.
In order to succeed Mr Kamau has to bring himself within rule s4 by showing sufficient cause to explain why the required steps were not taken timeously.
He is gallant enough to admit freely that the lapses which occurred happened due to ommision on his part. That is not sufficient cause. We are therefore unable to accede to his request.
The appeal is ordered to be struck out as incompetent, with costs to the respondent.
Issues in the judgment
#The judgment contains typographical errors, including 'rule s4' for rule 4, 'compiled with' for complied with, and 'ommision' for omission, which obscure but do not defeat the meaning.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "ANDREW A APIYO vs MICHAEL M O MASHERE [1983] KECA 7 (KLR)", Case Analysis (1983). Civil Appeal No. 32 of 1982. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1983/7/eng@1983-10-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.