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Court of AppealPartially AllowedCivil Appeal No 95 of 1985

MICHAEL A O MASHERE v PROTAS MAKOKHA WALUSALA [1986] KECA 64 (KLR)

Court of Appeal
21 June 1986
AKAA KnellerAHARW HancoxHPHG Platt
814 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled a missing formal decree is a curable defect, so an appeal survives if corrected quickly.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Kisumu (Kneller, Hancox and Platt, JJ A) on two preliminary objections raised by the respondent, Mr Azangalala, to an appeal by Mr Michael A O Mashere. The appellant sought to appeal against an order of Gicheru, J of the High Court at Kakamega dated November 25, 1983, summarily rejecting his appeal under section 79B of the Civil Procedure Act from a decision of the acting resident magistrate of Kakamega of August 16, 1983, which had dismissed his libel claim against the respondent over a letter alleged to have been written on April 11, 1982. The magistrate's principal ground was that the letter's authorship by the respondent was not proved to the requisite standard. The respondent objected first that no formally extracted decree or order, as required by rule 85(1)(h) of the Court of Appeal Rules, was included in the record, and secondly that parts of the record were extrinsic matter or additional evidence not properly admitted under rule 29(1)(b). The court held that a section 79B decision, though made without argument, is judicially made and, being final in form and substance, must be reflected in a decree, which founds the court's jurisdiction; the power to reject appeals summarily should be sparingly exercised. The first objection was upheld, but rather than striking out the appeal, the court granted leave to file a supplementary record containing a certified copy of the extracted decree within ten days, to be served on the respondent's advocates seven days after filing, with default leading to striking out. Documents relevant to the appeal, including the July 30, 1985 order extending time, were not excluded. Costs of the striking-out application were awarded to the respondent in any event. The underlying appeal remains pending; the decision below was not disturbed.

Questions the Court framed

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

  1. 1.Whether the appeal should be struck out for failure to include a formally extracted decree or order as required by rule 85(1)(h) of the Court of Appeal Rules
  2. 2.Whether parts of the record constitute extrinsic matter or additional evidence improperly included otherwise than under rule 29(1)(b)

Key legal issues

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01

Whether a section 79B order must be formally extracted as a decree to sustain an appeal to the Court of Appeal

Holding

A section 79B decision is judicially made and, being final in form and substance, must be reflected in a decree; its absence is a defect but curable by a supplementary record.

Reasoning

Although a section 79B order is made without argument, it is a decision requiring careful perusal of the record and weighing of matters relevant to denying a litigant the ordinary right of appeal. Such a decision should be sparingly exercised. Because it is final in form and substance, it must be embodied in a decree, which founds the Court of Appeal's jurisdiction. The court nonetheless allowed leave to cure the omission within ten days.

p. 2
02

Whether surplusage and later-dated documents in the record warrant striking out or exclusion

Holding

Documents subsequent to the magistrate's decision purporting to show malice were of limited value, but documents relevant to the appeal, including the order extending time, were not excluded at that stage.

Reasoning

The court agreed much of the record appeared to be surplusage and that material subsequent to the magistrate's decision, if intended to show ill-will, would be of limited value. However, documents after page 51, including the court's July 30, 1985 decision extending time and supporting documents, were clearly relevant. The court declined to strike them out or order exclusion at that stage of the proposed appeal.

p. 2

Legal principles established

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  • An order under section 79B of the Civil Procedure Act rejecting an appeal is a decision judicially made and, being a final decision of the High Court, must be reflected in a decree, which provides the basis for the jurisdiction of the Court of Appeal.
  • The power under section 79B of the Civil Procedure Act to reject an appeal summarily should be sparingly exercised.

Court orders

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  1. 1.Leave granted to the appellant to file a supplementary record containing a certified copy of the formally extracted decree within ten days
  2. 2.The supplementary record to be served on the respondent's advocates seven days after filing
  3. 3.In default of filing, the appeal to be struck out
  4. 4.Costs of the application to strike out to be the respondent's in any event

The bench

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

AK
majority
AH
majority
HP
majority
On appeal from
High Court of Kenya at Kakamega
Civil Appeal No 67 of 1983
Jurisdiction invoked
Court of Appeal Rules, rule 85(1)(h) and rule 29(1)(b) (appeal from High Court decision under section 79B of the Civil Procedure Act)

Relief refused

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Striking out of the appeal for want of a formally extracted decree

The court upheld the preliminary objection in principle but gave leave to cure the defect by filing a supplementary record rather than striking out the appeal immediately

p. 2

Exclusion of documents from the record as extrinsic matter

Some documents were relevant, notably the court's decision of July 30, 1985 extending time and supporting documents

p. 2

Costs

Costs of the application to strike out to be the respondent's in any event.

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.

it amounts to decision judicially made which, however brief, should be reflected in a formal order or decree
p. 2Nature of a section 79B decision
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
p. 2Final orders - leave to file supplementary record
In default the appeal shall be struck out.
p. 2Final orders - consequence of default
Costs of the application to strike out to be the respondent's in any event.
p. 2Final orders - costs

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, "MICHAEL A O MASHERE v PROTAS MAKOKHA WALUSALA [1986] KECA 64 (KLR)", Case Analysis (1986). Civil Appeal No 95 of 1985. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/64/eng@1986-06-21

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