Municipal Council of Kitale v Nathan Fedha [1983] KECA 70 (KLR)
The bottom line
#Kenya's Court of Appeal struck out the Council's appeal because its record omitted a copy of the decree, and an advocate's oversight did not justify the omission.
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 appellant should be granted leave to include a copy of the High Court decree in the record of appeal after the record had been filed without it
- 2.Whether the respondent's motion to strike out the notice and record of appeal should succeed
- 3.Whether time for serving the notice of appeal out of time should be extended
Key legal issues
#Whether 'sufficient reason' existed under rule 4 to extend time to include the decree in the record
No - the defect was due to the advocate's oversight and no sufficient reason was established.
The advocate waited for a certified copy of the judgment before extracting the decree and did not exercise all due diligence. Counsel offered no supporting statement of the nature of the judgment and grounds of appeal, so the court could not assess injustice. The application failed on both hurdles.
Whether the appeal should be struck out for want of a copy of the decree in the record
Yes - rule 85(1) mandatorily requires the decree in the record of appeal; the omission renders the appeal incompetent.
The omission could not be cured by supplementary filing, as Kiboro establishes. Since the record was defective in a manner rendering the appeal incompetent, striking out followed and the court found it unnecessary to determine the other motions.
Whether technical objections to service and content of the notice of appeal warranted striking out
No - the delay in service was satisfactorily explained and the address objections lacked merit.
Service was three days late but the delay was accounted for by the process server's failure and intervening absence and holidays. The respondent knew the appellant's whereabouts, and addresses appeared in the record of appeal as rule 85(1)(b) requires. Proof of service was effectively admitted by the respondent's own affidavit.
Legal principles established
#- An advocate's oversight is not normally 'sufficient reason' to extend time under rule 4.
- A document which ought to have been in the original record of appeal cannot be added by way of supplementary record after the prescribed time.
- Inclusion of a copy of the decree in the record of appeal is a mandatory requirement under rule 85(1), and its absence renders the appeal incompetent and liable to be struck out.
- An application to extend time should be supported by a statement of the nature of the judgment and reasons for appealing, so the court can assess whether refusal would cause injustice.
Court orders
#- 1.The appellant's motion on notice of February 10, 1983 is refused with costs
- 2.The respondent's motion on notice filed on March 8, 1983 is allowed with costs
- 3.The appellant's motion on notice of March 18, 1983 is rejected with costs
- 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.
Wrote the judgment
Wrote the leading ruling dealing with the three consolidated motions: refused the appellant leave to include the decree in the record for want of 'sufficient reason', allowed the respondent's motion to strike out because the record lacked a copy of the decree, and rejected the appellant's extension of time for serving the notice of appeal.
The upshot is that the appellant’s application fails and should be dismissed with costs.p. 2
Wrote the judgment
Agreed with Kneller JA's proposed orders, adding that a respondent without locus standi under rule 80 may still apply to strike out under rule 42.
then he can do so under rule 42, as was stated recently in Taracisio Githaiga Ruithibo v Mbuthia Nyingi, Civil Appeal No 21 of 1982.p. 4
Wrote the judgment
Agreed the record of appeal was defective for want of a copy of the decree, a mandatory requirement under rule 85(1), rendering the appeal incompetent and liable to be struck out; considered it unnecessary to determine the other motions.
It follows what the appeal is incompetent and must be struck out.p. 4
- On appeal from
- High Court
- Civil Case No 106 of 1981
- Jurisdiction invoked
- Court of Appeal Rules (rules 4, 42(1), 44, 74, 76, 80, 81, 85, 87) - inherent jurisdiction under rule 1(3)
Relief refused
#Leave to include a copy of the decree in the record of appeal
The delay was due to the advocate's oversight, which does not constitute 'sufficient reason' under rule 4, and the omission cannot be cured by a supplementary record.
Extension of time for serving the notice of appeal
Although the delay was satisfactorily explained, the material enabling the court to exercise its discretion (the outline of the judgment and grounds of appeal) was missing.
Costs
All three motions and the striking out were with costs: the appellant's motions of February 10 and March 18, 1983 dismissed with costs; the respondent's motion of March 8, 1983 allowed 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.
1) the appellant’s motion on notice of February 10, 1983 is refused with costs; 2) this respondent’s motion on notice filed on March 8, 1983 is allowed with costs; 3) the appellant’s motion on notice of March 8, 1983 is rejected with costs; and 4) the notice and record of appeal are struck out with cost.
it is a mandatory requirement under rule 85(1) of the rules of this court, to include a copy of the decree.
Normally this does not constitute ‘sufficient reason’ for applying rule 4.
a supplementary record cannot comprise documents, which ought to be included in the original record of appeal, after the time prescribed has ended.
should support his application by a sufficient statement of the nature of the judgement and of his reasons desiring to appeal against it to enable the court to determine whether or not a refusal of the application would appear to cause an injustice.
Issues in the judgment
#Internal inconsistency in the description of the appellant's third motion: the narrative and orders describe it as a motion 'of March 8, 1983' while the judgment elsewhere and Platt Ag JA describe it as filed on March 18, 1983.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Njaggah v Board of Directors of Water Services Regulatory Authority & 2 others (Civil Appeal E108 of 2024) [2025] KECA 1258 (KLR)[2025] KECA 1258 (KLR)11 Jul 2025
Cite this brief
#Cite this brief
Caselaw, "Municipal Council of Kitale v Nathan Fedha [1983] KECA 70 (KLR)", Case Analysis (1983). Civil Appeal (High Court Civil Case No 106 of 1981, Kitale/Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1983/70/eng@1983-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.