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Court of AppealPartially AllowedCivil Application No. NAI. 221 of 1998 (KSM. 21/98)

Zedekiah Ogada v Albert Ogutu [1998] KECA 106 (KLR)

Court of Appeal of Kenya
25 November 1998
355 words in judgment
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The bottom line

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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

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Executive summary

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This is a short ruling of the Court of Appeal at Kisumu (Kwach, Tunoi and Owuor JJ.A) delivered on 25 November 1998 on an application under rule 80 of the Court of Appeal Rules to strike out Civil Appeal No. 189 of 1998, an intended appeal by Zedekiah Ogada against a decision of Wambilyangah J of the High Court at Kisumu dated 14 January 1998 in H.C.C.C. No. 33 of 1996, by which the learned judge dismissed the applicant's application for stay of execution. The court identified three fatal defects in the intended appeal. First, the appellant failed to file a Notice of Appeal within the 14 days required by rule 74(2) of the Court of Appeal Rules; instead he lodged a Record of Appeal on 13 March 1998 containing a document purporting to be a notice of appeal, which the court examined and held not to be a Notice of Appeal within the meaning of rule 74. Secondly, the record did not contain a certified copy of the decree appealed against. Thirdly, the order appealed against - the dismissal of a stay application under Order 21 of the Civil Procedure Rules - was not appealable without leave of the superior court, and no leave had been obtained. The court accordingly struck out the appeal as incompetent, awarded the respondent costs of the appeal assessed at Shs.5,000/= and costs of the motion assessed at Shs.1,000/=, payable within sixty days, with execution to issue in default. The ruling binds lower courts on the mandatory requirements of rule 74 for competent appeals.

Questions the Court framed

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

  1. 1.Whether the intended appeal should be struck out as incompetent
  2. 2.Whether the document at page 29 of the record constitutes a valid Notice of Appeal under rule 74
  3. 3.Whether the record contains a certified copy of the decree appealed against
  4. 4.Whether the order appealed against is appealable without leave

Key legal issues

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01

Validity of the notice of appeal

Holding

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)

Reasoning

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.

p. 2
02

Completeness of the record of appeal

Holding

The record of appeal was defective for want of a certified copy of the decree appealed against

Reasoning

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.

p. 2
03

Appealability of the order appealed against

Holding

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

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The appeal (Civil Appeal No. 189 of 1998) is struck out as incompetent
  2. 2.Costs of the appeal to the respondent assessed at Shs.5,000/=
  3. 3.Costs of the motion to the respondent assessed at Shs.1,000/=
  4. 4.Costs to be paid within sixty (60) days and in default execution to issue

The bench

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

majority
majority
majority
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

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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

p. 2

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

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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.

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.
p. 2Final orders - striking out of incompetent appeal and costs
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.
p. 2Invalidity of purported notice of appeal
Nor does the record contain a certified copy of the decree appealed against.
p. 2Incomplete record of appeal
Last but not least the order appealed against is not appealable without leave of the superior court.
p. 2Appealability without leave

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, "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.