Zedekiah Ogada v Albert Ogutu [1998] KECA 106 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal because the appellant missed the 14-day notice deadline, lacked a certified decree, and needed leave to appeal.
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 intended appeal should be struck out as incompetent
- 2.Whether the document at page 29 of the record constitutes a valid Notice of Appeal under rule 74
- 3.Whether the record contains a certified copy of the decree appealed against
- 4.Whether the order appealed against is appealable without leave
Key legal issues
#Validity of the notice of appeal
The document lodged in the record purporting to be a notice of appeal was not a Notice of Appeal within the meaning of rule 74, and none was filed within the 14-day period prescribed by rule 74(2)
The court examined the document at page 29 of the record and was satisfied it did not meet the requirements of rule 74. Failure to file a notice of appeal within the statutory 14 days rendered the appeal incompetent and liable to be struck out under rule 80.
Completeness of the record of appeal
The record of appeal was defective for want of a certified copy of the decree appealed against
The record lodged on 13.3.98 contained assorted documents but no certified decree. A record lacking the certified decree is incomplete and the appeal founded on it is incompetent.
Appealability of the order appealed against
The order dismissing an application for stay of execution under Order 21 of the Civil Procedure Rules was not appealable without leave of the superior court
The decision appealed from was the dismissal of a stay-of-execution application made under Order 21 of the Civil Procedure Rules. Such an order is appealable only with leave, and no leave having been obtained, the appeal was incompetent.
Legal principles established
#- A notice of appeal must be filed within 14 days of the decision as required by rule 74(2) of the Court of Appeal Rules, and a document not complying with rule 74 is not a valid notice of appeal
- An appeal must include a certified copy of the decree appealed against, and an order that is not appealable without leave cannot sustain an appeal filed without such leave
Court orders
#- 1.The appeal (Civil Appeal No. 189 of 1998) is struck out as incompetent
- 2.Costs of the appeal to the respondent assessed at Shs.5,000/=
- 3.Costs of the motion to the respondent assessed at Shs.1,000/=
- 4.Costs to be paid within sixty (60) days and in default execution to issue
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisumu
- H.C.C.C. No. 33 of 1996
- Jurisdiction invoked
- Rule 80 of the Court of Appeal Rules (inherent supervisory jurisdiction over appeals; striking out incompetent appeals)
Relief refused
#Leave to proceed with the intended appeal
The appeal was incompetent: no valid notice of appeal was filed in time, no certified decree was included, and the order appealed against was not appealable without leave
Costs
Costs of the appeal to the respondent assessed at Shs.5,000/= and costs of the motion assessed at Shs.1,000/=, to be paid within sixty (60) days and in default execution to issue.
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.
For all these reasons the appeal is incompetent and is struck out with costs to the respondent assessed at Shs.5,000/=. The respondent will also hear the costs of the motion assessed at Shs.1,000/=. The costs awarded to the respondent to be paid within sixty (60) days and in default execution to issue.
We have looked at that document and we are satisfied it is not a Notice of Appeal within the meaning rule 74 of the Rules of this court.
Nor does the record contain a certified copy of the decree appealed against.
Last but not least the order appealed against is not appealable without leave of the superior court.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Zedekiah Ogada v Albert Ogutu [1998] KECA 106 (KLR)", Case Analysis (1998). Civil Application No. NAI. 221 of 1998 (KSM. 21/98). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/106/eng@1998-11-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.