Gregory Kiema Kyuma v Marietta Syokau Kiema [1988] KECA 111 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal filed late because a certificate of delay only covers getting a copy of the order, not the full judgment and proceedings.
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 memorandum of appeal filed on 29th April 1987 set on foot a competent appeal from the Magistrate's judgment of 5th December 1986
- 2.Whether the certificate of delay issued on 2nd April 1987 was a valid certificate within the meaning of section 79G of the Civil Procedure Act
- 3.Whether the application for extension of time made by Mr. Ogutu and the conditional grant thereof were superfluous
- 4.Whether the High Court Judge was entitled to strike out the appeal and to refuse an interim injunction for want of a pending appeal
Key legal issues
#Validity of the certificate of delay under section 79G
The certificate issued on 2nd April 1987, which certified the time taken to prepare copies of the proceedings and judgment, was not the certificate contemplated by section 79G and could not extend the thirty-day period for filing the appeal.
Section 79G excludes from the thirty-day period only time the lower court certifies as requisite for preparation and delivery of a copy of the decree or order appealed against. The appellant, in error, applied for certified copies of the proceedings and judgment instead of the formal order. The certificate therefore did not cover the period 5th January to 2nd April 1987, and the appeal filed on 29th April 1987 was out of time and incompetent.
Whether the application for extension of time was superfluous
The extension application was not superfluous but absolutely necessary, since the appellant had no valid certificate of delay and could not appeal as of right.
Since the certificate of delay was invalid, the appellant could not appeal as of right under section 79G. His only route to a competent appeal was the court's discretion under the proviso to admit the appeal out of time for good and sufficient cause. That discretion had been exercised on a condition (payment of Shs. 25,000/- into court by 12th May 1987) which the appellant never fulfilled, so the Judge was entitled to strike out the appeal.
Jurisdiction to grant interim injunction pending appeal
There being no pending appeal after the striking out, the High Court had no jurisdiction to grant an interim injunction to stop attachment of the appellant's properties.
The injunction application was premised on the existence of a pending appeal. Once the appeal was held incompetent and struck out, the foundational jurisdiction for interim relief disappeared. The Court of Appeal found no fault in the Judge's holding on this point.
Legal principles established
#- A certificate of delay under section 79G of the Civil Procedure Act covers only the period requisite for the preparation and delivery of a copy of the decree or order appealed against, not the period required to obtain copies of the proceedings and judgment.
- An appeal is a creature of statute and an appellant must comply strictly with the substantive and procedural legislation conferring the right of appeal.
- Where there is no pending appeal, the court has no jurisdiction to grant an interim injunction.
- A judge exercising discretion to admit an appeal out of time under the proviso to section 79G is entitled to do so on terms, and failure to fulfil the condition disentitles the appellant.
Court orders
#- 1.Appeal dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Apaloo JA delivered the lead judgment. He held that a certificate of delay under section 79G of the Civil Procedure Act covers only the time required to prepare a copy of the decree or order, not the proceedings and judgment. The appellant's certificate was therefore invalid, the appeal filed on 29th April 1987 was out of time, and the extension of time granted on condition (payment of Shs. 25,000/-) was not superfluous but necessary. The condition not having been fulfilled, the Judge was entitled to strike out the appeal and had no jurisdiction to grant an interim injunction in the absence of a pending appeal.
an appeal is a creature of statute and any person desirous of exercising that right must bring himself squarely within the four corners of the substantive and procedural legislation.p. 3
Wrote the judgment
Gachuhi JA wrote separately, adding that in matrimonial cases there is no decree drawn but orders, so the appeal was to be filed against the order signed on 27th January 1987. The certificate relied on by the appellant was not provided for in the Act or Rules, the application for extension of time was rightly granted on condition, and the appeal should be dismissed with costs.
I would and that in matrimonial cases, there is no decree drawn but orders. The appeal was to be filed against the order drawn and signed on 27th January 1987.p. 3
Wrote the judgment
Kwach Ag JA, noting the point was of general importance, wrote separately. He held that a certificate of delay under section 79G covers only the period requisite for preparation and delivery of a copy of the decree or order appealed against, not the period for obtaining copies of proceedings and judgment. The certificate relied on was worthless, the appeal was hopelessly out of time and incompetent, and the appeal should be dismissed with costs.
A certificate of delay issued in accordance with the terms of that section covers only the period requisite for the preparation and delivery to the appellant of a copy of the decree or order appealed against.p. 5
- On appeal from
- High Court of Kenya
- Misc. Case No. 186 of 1987 (ruling of 14th August 1987); underlying High Court Appeal No. 104 of 1987
- Jurisdiction invoked
- First appeal to the Court of Appeal against a High Court ruling; right of appeal from subordinate courts conferred by section 65 of the Civil Procedure Act (Cap 21)
Relief refused
#Setting aside the High Court ruling striking out the appeal and refusing the interim injunction
The certificate of delay was invalid, the appeal was out of time, and the condition imposed on the extension of time was never fulfilled
Costs
The appeal was dismissed with costs to the respondent.
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.
My conclusion therefore is, that this appeal fails and should be dismissed with costs.
This appeal does not comply with the provision of the law and it should be dismissed with costs.
The conclusion I have arrived at removes the central plank of the appellant's appeal which inevitably collapses and should be dismissed with costs.
It does not and cannot be used to cover a period, as is suggested in the certificate, which may be required to obtain copies of proceedings and judgment.
an appeal is a creature of statute and any person desirous of exercising that right must bring himself squarely within the four corners of the substantive and procedural legislation.
Issues in the judgment
#The judgment records the appellant's advocate's letter of application as dated 5th January 1986, which the court itself explains as a typographical error for 5th January 1987.
The judgment gives inconsistent dates for the order striking out the appeal: Apaloo JA places it on 14th May 1987, while Kwach Ag JA places it on 22nd May 1987, and Kwach refers to the extension order as of 14th April 1987 whereas Apaloo places it on 24th April 1987.
Kwach Ag JA's summary of the parties misdescribes Gregory Kiema Kyuma as 'the respondent' although he is the appellant in this appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gregory Kiema Kyuma v Marietta Syokau Kiema [1988] KECA 111 (KLR)", Case Analysis (1988). High Court Civil Appeal No. 104 of 1987 (appeal from ruling of 14th August 1987). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/111/eng@1988-11-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.