BERNARD MAGOHA v LAND REGISTRAR & 3 OTHERS [1986] KECA 61 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the notice of appeal was defective for omitting the name of the 5th defendant, a person directly affected by the appeal
- 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.Whether service of the notice of appeal on the sub-chief was effectively effected or whether the applicant lied about it
- 4.Whether an extension of time to serve the notice of appeal should be granted
Key legal issues
#Defective notice of appeal omitting a directly affected party
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)
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.
Late and doubtful filing of notice of appeal
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
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.
Credibility and service of the notice of appeal
An applicant shown to have lied about effecting service cannot be granted the indulgence of extension of time
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.
Legal principles established
#- A striking out order is not a dismissal of the appeal and the party may re-apply
Court orders
#- 1.Struck out the notice of appeal under rule 80 of the Court of Appeal Rules
- 2.Left the notice of motion dated July 11, 1985 on the file, not dismissed, to permit a fresh application if advised
- 3.Awarded the costs of the day's proceedings to all the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court
- Jurisdiction invoked
- Court of Appeal Rules - rules 74(2), 76(1) and 80
Relief refused
#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
Costs
Costs of the day's proceedings awarded to all the respondents
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.
Accordingly I must, with great reluctance, strike out the notice of appeal, which I hereby do, under rule 80 of the rules
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.
I cannot do other than award the costs of today’s proceedings to all the respondents.
Issues in the judgment
#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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.