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Court of AppealOtherNot stated in judgment

BERNARD MAGOHA v LAND REGISTRAR & 3 OTHERS [1986] KECA 61 (KLR)

Court of Appeal of Kenya
19 March 1986
605 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out a defective, late notice of appeal where the applicant lied about service, but left the door open for a fresh application.

What this practically means

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Executive summary

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This was a ruling by Hancox, Judge of Appeal, at Kisumu on an application by Bernard Magoha for an extension of time to file the record of appeal and, additionally, for 14 more days to serve the notice of appeal. The court identified three fatal difficulties with the notice of appeal: it omitted the name of the 5th defendant in the High Court, Mr Osodo Obuny, who was clearly a person directly affected by the appeal under rule 76(1) of the Court of Appeal Rules; the date of filing was doubtful, the fee receipt being dated April 1, 1985, five days out of time, and the original notice of appeal untraceable, with the surviving copies bearing inconsistent stamps; and the applicant was shown demonstrably to have lied about sending copies of the notice to the sub-chief, whose cross-examined evidence refuted any suggestion of mistake. The court held the notice of appeal was bad at its inception and, with reluctance, struck it out under rule 80 on the grounds that essential steps under rules 74(2) and 76(1) were not taken. Costs of the day's proceedings were awarded to all the respondents. Significantly, the court declined to dismiss the notice of motion dated July 11, 1985, leaving it on the file as an act of mercy, on the settled principle that a striking out is not a dismissal of the appeal and the applicant may re-apply for a fresh notice of appeal out of time if successful.

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 defective for omitting the name of the 5th defendant, a person directly affected by the appeal
  2. 2.Whether the notice of appeal was filed out of time given the conflicting filing stamps and the fee receipt dated April 1, 1985
  3. 3.Whether service of the notice of appeal on the sub-chief was effectively effected or whether the applicant lied about it
  4. 4.Whether an extension of time to serve the notice of appeal should be granted

Key legal issues

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01

Defective notice of appeal omitting a directly affected party

Holding

A notice of appeal that omits the name of a person directly affected by the appeal is bad at its inception under rule 76(1)

Reasoning

The notice of appeal did not contain the name of the 5th defendant in the High Court, Mr Osodo Obuny, who was clearly a person directly affected by the appeal. This omission was treated as an essential step not taken and a ground for striking out under rule 80.

p. 1
02

Late and doubtful filing of notice of appeal

Holding

Where the fee receipt is out of time and the original notice cannot be traced, with conflicting stamps on the copies, the court may treat the notice as bad

Reasoning

The fee receipt was dated April 1, 1985, five days out of time; the original notice of appeal could not be traced; and the copies bore inconsistent dates ('March 2, 1985' and '26 March 1985'). This cast doubt on timely filing and contributed to striking out.

p. 1
03

Credibility and service of the notice of appeal

Holding

An applicant shown to have lied about effecting service cannot be granted the indulgence of extension of time

Reasoning

The applicant claimed the sub-chief would serve the notices, but the Chief denied ever serving court processes in that capacity, refuting any suggestion of mistake. The court found the applicant demonstrably lied and thus disentitled him to indulgence.

p. 1

Legal principles established

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  • A striking out order is not a dismissal of the appeal and the party may re-apply

Court orders

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  1. 1.Struck out the notice of appeal under rule 80 of the Court of Appeal Rules
  2. 2.Left the notice of motion dated July 11, 1985 on the file, not dismissed, to permit a fresh application if advised
  3. 3.Awarded the costs of the day's proceedings to all the respondents

The bench

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

majority

Wrote the judgment

On appeal from
High Court
Jurisdiction invoked
Court of Appeal Rules - rules 74(2), 76(1) and 80

Relief refused

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Extension of time of 14 days more for service of the Notice of Appeal

The applicant demonstrably lied about sending copies of the notice of appeal to the sub-chief, and the notice was defective and late

p. 2

Costs

Costs of the day's proceedings awarded to all the respondents

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.

Accordingly I must, with great reluctance, strike out the notice of appeal, which I hereby do, under rule 80 of the rules
p. 2Striking out of notice of appeal
It is well settled that a striking out order is not a dismissal of the appeal, and the applicant may well wish to re-apply by notice of motion for a fresh notice of appeal to be filed and served property.
p. 2Effect of striking out vs dismissal
I cannot do other than award the costs of today’s proceedings to all the respondents.
p. 2Costs order

Issues in the judgment

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minor

The judgment references 'rule 76(1)l' which appears to contain a typographical error, and grounds (b) in the rule 80 list appear omitted, jumping from (a) to (c)

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, "BERNARD MAGOHA v LAND REGISTRAR & 3 OTHERS [1986] KECA 61 (KLR)", Case Analysis (1986). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/61/eng@1986-03-19

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