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Court of AppealStruck OutCivil Appeal No. 32 of 1982

ANDREW A. APIYO vs MICHAEL A. O. MASHERE [1983] KECA 113 (KLR)

Court of Appeal
5 October 1983
353 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~1 min to read original · ~4 min brief

The bottom line

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The Court of Appeal struck out an appeal because the appellant's lawyer missed procedural deadlines, and honesty about the mistake was no excuse.

What this practically means

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Executive summary

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This Court of Appeal decision at Nakuru (Madan and Kneller, JJ A, and Chesoni, Ag. J A) determined a preliminary objection by the respondent, Michael M O Mashere, to the prosecution of Andrew A Apiyo's appeal from a ruling of the High Court at Eldoret (Mbaya, J) dated 7th May 1982 in Civil Case No. 111 of 1976. The respondent objected that the Notice of Appeal, filed on 14th May 1982, was not served on him within the seven days required by rule 76(1), and that the Memorandum of Appeal and record of Appeal, lodged on 14th July 1982, were not served within seven days as required by rule 87(1). Counsel for the appellant, Mr Kamau, candidly conceded that both rules were breached, service having occurred only on 30th October 1982, and further conceded a breach of rule 85(1)(h) because the certified copy of the order appealed against was not included in the Record of Appeal. He sought extension of time under rule 4 so that the Notice and Memorandum of Appeal would be deemed served within time, and extension to file the certified order out of time. The court held that an applicant must show sufficient cause for the failure to act timeously, and that counsel's free admission that the lapses were due to his own omission did not constitute sufficient cause. The appeal was struck out as incompetent, with costs to the respondent.

Questions the Court framed

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

  1. 1.Whether the Notice of Appeal was served on the respondent within the time prescribed by rule 76(1)
  2. 2.Whether the Memorandum of Appeal and record of Appeal were served within seven days of lodging as required by rule 87(1)
  3. 3.Whether there was breach of rule 85(1)(h) in failing to include a certified copy of the order appealed against in the Record of Appeal
  4. 4.Whether the appellant had shown sufficient cause under rule 4 to warrant extension of time for the defective steps

Key legal issues

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01

Whether failure to serve the Notice of Appeal, Memorandum of Appeal and record of Appeal within the prescribed times rendered the appeal incompetent

Holding

Yes; non-compliance with rules 76(1) and 87(1), coupled with the breach of rule 85(1)(h), rendered the appeal incompetent and it was struck out.

Reasoning

The respondent objected that the Notice of Appeal filed on 14th May 1982 was not served within 7 days, and that the Memorandum and record of Appeal lodged on 14th July 1982 were not served within seven days. Counsel for the appellant conceded non-compliance, service having occurred only on 30th October 1982, and further conceded that the certified copy of the order was missing from the record. The court declined to exercise the rule 4 discretion to extend time because counsel admitted the lapses were his own omissions.

p. 1
02

Whether 'sufficient cause' under rule 4 was established to excuse the procedural defaults

Holding

No; counsel's candid admission that the omissions were his own did not amount to sufficient cause.

Reasoning

The appellant's advocate applied for extension of time so that the Notice and Memorandum of Appeal would be deemed served within time, and for extension to file the certified order out of time. The court held that an applicant under rule 4 must demonstrate sufficient cause for the failure to act timeously, and that a frank admission of personal omission on the part of counsel falls short of that standard. The request was accordingly refused.

p. 1

Legal principles established

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  • An appellant seeking extension of time for compliance with the appeal rules must show sufficient cause explaining why the required steps were not taken timeously; a free admission that the delay was due to counsel's own omission is not sufficient cause.

Court orders

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  1. 1.The appeal was ordered to be struck out as incompetent
  2. 2.Costs of the appeal awarded to the respondent

The bench

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

majority

Wrote the judgment

majority
majority
On appeal from
High Court of Kenya at Eldoret
Civil Case No. 111 of 1976
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal under the applicable appeal rules (rules 76(1), 85(1)(h), 87(1) and 4 of the Court of Appeal Rules)

Relief refused

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Extension of time so that the Notice of Appeal and Memorandum of Appeal be deemed served within time, and extension to file the certified order out of time

Counsel for the appellant freely admitted the lapses were due to his own omission, which did not constitute sufficient cause under rule 4

p. 1

Costs

Costs of the striking out awarded to the respondent - 'The appeal is ordered to be struck out as incompetent, with costs to the respondent.'

Quotable passages

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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.
p. 1Sufficient cause under rule 4 for extension of time
He is gallant enough to admit freely that the lapses which occurred happened due to ommision on his part. That is not sufficient cause.
p. 1Counsel's omission is not sufficient cause
The appeal is ordered to be struck out as incompetent, with costs to the respondent. Order accordingly.
p. 1Final orders - striking out for non-compliance with appeal rules

Issues in the judgment

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minor

The coram line appears as '(Coram: Madan and Kneller, JJ A and Chesoni, Ag. J A) CIVIL APPEAL NO. 32 OF 1982)' with an unmatched opening parenthesis and the case number run into the coram parenthesis.

minor

The judgment contains typographical errors, e.g. 'rule s4' for 'rule 4' and 'ommision' for 'omission'.

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 A. APIYO vs MICHAEL A. O. MASHERE [1983] KECA 113 (KLR)", Case Analysis (1983). Civil Appeal No. 32 of 1982. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1983/113/eng@1983-05-10

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