MICHAEL A O MASHERE v PROTAS MAKOKHA WALUSALA [1986] KECA 9 (KLR)
The bottom line
#The Court of Appeal confirmed that a High Court's summary rejection of an appeal needs a formal decree, but gave the appellant a second chance instead of ending his case.
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 failure to include a formally extracted decree or order, as required by rule 85(1)(h) of the Court of Appeal Rules, warranted striking out the appeal
- 2.Whether portions of the record constituted extrinsic matter or additional evidence improperly included without leave under rule 29(1)(b)
Key legal issues
#Whether an order under section 79B of the Civil Procedure Act must be formally extracted as a decree before an appeal lies to the Court of Appeal
Yes. A section 79B decision is a judicial decision made after careful perusal of the record; being a final decision of the High Court in form and substance, it must be reflected in a formally extracted decree, which supplies the basis of the Court of Appeal's jurisdiction.
The court acknowledged that a section 79B order is made without argument, but stressed that it is a decision of the court supposed to be made after careful perusal of the record and after weighing matters relevant to denying a litigant the ordinary right of appeal. Such a judicial decision, however brief, must be reflected in a formal order or decree. Because the decision is final in form and substance, it should be embodied in a decree rather than an order, and that decree underpins the appellate jurisdiction.
Whether extraneous material in the record of appeal justified striking out those documents or the appeal
No. While some material postdating the magistrate's decision was of limited value, other documents were clearly relevant to the appeal, including the decision extending time and its supporting documents, and were allowed to remain in the record at that stage.
The respondent objected that parts of the record were unnecessary, extrinsic, and amounted to additional evidence without a proper application under rule 29(1)(b). The court agreed that material intended to show malice, being subsequent to the magistrate's decision, had limited value. However, documents after page 51, including the court's July 30, 1985 decision extending time and supporting documents, were plainly relevant, so the court declined to strike them out or order their exclusion at that stage.
Legal principles established
#- A decision under section 79B of the Civil Procedure Act summarily rejecting an appeal is a judicial decision which, being final in form and substance, must be reflected in a formally extracted decree, and that decree founds the jurisdiction of the Court of Appeal.
- The power of a High Court judge under section 79B to reject a second appeal summarily should be exercised sparingly.
Court orders
#- 1.The first preliminary objection is upheld: a section 79B decision of the High Court must be reflected in a formally extracted decree
- 2.The appeal is not struck out at this stage
- 3.Leave granted to the appellant to file a supplementary record containing a certified copy of the formally extracted decree within ten days, to be served on the respondent's advocates seven days after filing
- 4.In default of filing the supplementary record, the appeal shall be struck out
- 5.Costs of the application to strike out to be the respondent's in any event
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kakamega
- Civil Appeal No 67 of 1983
- Jurisdiction invoked
- Appeal to the Court of Appeal from a final decision of the High Court under rule 85(1)(h) of the Court of Appeal Rules; the extracted decree or order 'provides the basis for the jurisdiction of this court'
Relief refused
#Striking out the appeal for failure to include a formally extracted decree
Although the objection was well taken, the court gave the appellant leave to file a supplementary record rather than striking out the appeal immediately
Exclusion or striking out of the impugned documents in the record
Some of the documents were relevant to the appeal, notably the court's decision of July 30, 1985 extending time and supporting documents
Costs
Costs of the application to strike out to be the respondent's in any event.
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.
Therefore in our view it amounts to decision judicially made which, however brief, should be reflected in a formal order or decree.
As the decision in, in form and in substance, a final decision of the High Court, then it should, as Mr Azangalala said, be reflected in a decree rather than an order. This in effect, provides the basis for the jurisdiction of this court.
As this court said in Peter Nzioki & Another v Aron Kitusa, Civil Appeal 54 of 1982, it is a power which should be sparingly exercised.
Accordingly we consider that the first preliminary objection is well taken, but we do not intend to strike out the appeal, as of now. We will give Mr Mashere leave to file a supplementary record containing a certified copy of the formally extracted decree within ten days from today.
In default the appeal shall be struck out. Costs of the application to strike out to be the respondent's in any event. Orders accordingly.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "MICHAEL A O MASHERE v PROTAS MAKOKHA WALUSALA [1986] KECA 9 (KLR)", Case Analysis (1986). Civil Appeal No 95 of 1985. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/9/eng@1986-06-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.