JOB ASAMBA KAMULLA v ZAKAYO KAGULUKA ASAMBA & 2 OTHERS [1986] KECA 63 (KLR)
The bottom line
#The Court of Appeal ruled that grievances about how a High Court case was handled must be raised on appeal, not through review, but allowed the impoverished applicant to appeal without paying fees.
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 High Court ruling of September 25, 1985 can be revisited by way of an application for review to the Court of Appeal
- 2.Whether the applicant should be granted leave to appeal as a pauper under rule 112
- 3.Whether time should be extended for instituting the appeal under rules 4 & 81
Key legal issues
#Competence of a review application in the Court of Appeal
The application for review is incompetent; dissatisfaction with the High Court ruling must be ventilated on appeal
The court traced the procedural history, noted the applicant had already filed a valid notice of appeal within the fourteen-day period under rule 74, and concluded that any dissatisfaction with the ruling of September 25, 1985, delivered after a submission by only the second plaintiff without hearing the first plaintiff, is a matter for appeal, not review.
Leave to appeal as a pauper under rule 112
Granted, because the requirements of rule 112 are less stringent than Order 32 of the Civil Procedure Rules and the applicant demonstrated he is a person without sufficient means and that the appeal is not without a reasonable possibility of success
The applicant's handwritten letter of October 14, 1985 set out circumstances showing he was without sufficient means to pay prescribed court fees. The court found the appeal not without a reasonable possibility of success as rule 112 requires, and the sole respondent present did not object.
Extension of time to institute the appeal
No application for extension was before the court, but leave was given to apply within 30 days under rules 4 & 81, to be served personally on each respondent
The court declined to grant extension directly since no such application existed, but preserved the applicant's access to justice by permitting a fresh application within 30 days, with personal service on each respondent to protect their position.
Legal principles established
#- Grievances about the manner in which first-instance proceedings were conducted must be pursued by appeal, not by an application for review to the Court of Appeal
- A valid notice of appeal filed within the fourteen-day period under rule 78 (rule 74 as stated) preserves the appellate remedy
Court orders
#- 1.The application for review filed on April 28, 1986 is dismissed as incompetent
- 2.Leave granted to the applicant to lodge an appeal without prior payment of court fees and without security for costs, the record of appeal to be prepared by the Registrar, on condition that the applicant pays the fees if he recovers anything in the entered appeal
- 3.Leave given to the applicant to apply to the court within 30 days for an extension of time to institute his appeal under rules 4 & 81, such application to be served personally on each respondent
- 4.Costs reserved for decision in due course
- 5.Copies of the ruling to be given to each party without payment after typing
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Kakamega
- Not stated
- Jurisdiction invoked
- Inherent review jurisdiction of the Court of Appeal; rules 74, 112, 4 & 81 of the applicable appellate rules; Order 32 of the Civil Procedure Rules referred
Relief refused
#Review of the judgment/ruling of Aganyanya J of September 25, 1985
The remedy, if any, lies by way of appeal, not review in the Court of Appeal
Extension of time sought directly
There was no application for extension of time before the court; leave to apply was granted instead
Costs
Costs reserved for decision in due course, and may well depend on whether the applicant pursues his appeal.
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.
It is evident from that which I have said that there are some unsatisfactory features about the manner of conducting the proceedings on September 25, 1985, but the remedy, if any, is not by way of an application for review to this court. It must be by way of appeal
I therefore grant to the applicant leave to lodge an appeal without prior payment of the courts fees, without security for costs being lodged, and that the record of appeal shall be prepared by the Registrar
The application for review filed on April 28, 1986 being incompetent, is dismissed.
The costs are reserved for decision in due course, and may well depend on whether the applicant pursues his appeal.
Issues in the judgment
#The case number, parties' full names (other than Lazaro A Asamba) and the specific rules instrument are not identified in the copy of the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "JOB ASAMBA KAMULLA v ZAKAYO KAGULUKA ASAMBA & 2 OTHERS [1986] KECA 63 (KLR)", Case Analysis (1986). Not stated in judgment (notice of motion for review filed April 28, 1986). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/63/eng@1986-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.