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Court of AppealPartially AllowedCivil Application No. NAI. 148 of 2000 (KSM 16/2000)· [2000] KECA 78 (KLR)

Kenya Iron Mongers Limited v Muhoroni Sugar Company Limited

Court of Appeal of Kenya
21 June 2000
Philip Kiptoo TunoiP.K. TunoiSBS.E.O. BosireMKM. Ole Keiwua
757 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out Muhoroni Sugar's appeal because it was filed late and built on a defective decree, showing strict compliance with filing rules is essential.

What this practically means

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Executive summary

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Kenya Iron Mongers Limited, decree-holder in Kisumu High Court Civil Case No. 241 of 1998, applied under rules 80, 82, 84 and 104 of the Court of Appeal Rules to strike out Muhoroni Sugar Company Limited's appeal (Civil Appeal No. 56 of 2000) against a decision of P.K Arap Birech, Commissioner of Assize, dated 24 November 1999. The applicant advanced three grounds: the memorandum and record of appeal were filed out of time; the decision appealed from did not comply with Order XX rule 6 of the Civil Procedure Rules and was not approved by counsel before submission for signature; and the memorandum of appeal was wrongly addressed and did not conform with the prescribed form. The court found the notice of appeal was filed on 7 December 1999 and the record on 3 March 2000, at least two days beyond the sixty-day period expiring on 29 February 2000 after excluding the Christmas vacation under rule 3(b). Counsel for the appellant properly conceded that, having failed to copy the letter bespeaking proceedings to the applicant as rule 81 mandatorily requires, the appellant could not invoke the proviso to rule 81. The court further held that the decision was a judgment giving rise to a decree rather than an order, and that its non-compliance with Order XX rules 6 and 7(2), coupled with counsel's concession, made it fatally defective as a primary document. However, defects in the memorandum of appeal were not fatal, since rule 85 does not require it to be included in the record and it may be amended with leave. The court allowed the application and struck out the appeal with costs of both the application and the appeal to the applicant. Judgment delivered at Kisumu on 21 June 2000 by Tunoi, Bosire and Ole Keiwua, JJ.A.

Key legal issues

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01

Timeous filing of memorandum and record of appeal

Holding

The appeal was filed at least two days out of time and, the proviso to rule 81 being unavailable due to counsel's non-compliance, the appeal was incompetent

Reasoning

The decision was given on 24 November 1999; the appellant had sixty days (expiring 29 February 2000, excluding the Christmas vacation) to file the memorandum and record. Filing occurred on 3 March 2000. Counsel conceded that the letter bespeaking proceedings was not copied to the applicant as rule 81 mandatorily requires, disentitling the appellant from the proviso. Without leave to file out of time, the appeal could not stand.

p. 1
02

Defects in the decree/order appealed from

Holding

The decision was a judgment giving rise to a decree, not an order; it was misdescribed and did not comply with Order XX rules 6 and 7(2), rendering it fatally defective

Reasoning

The court held that the decree or order is a primary document in an appeal. The decision below was misdescribed as an order and did not fully comply with Order XX rule 6; counsel further conceded non-compliance with Order XX rule 7(2). Taken together, these defects were fatal to the appeal.

p. 2
03

Status of the memorandum of appeal

Holding

A defective memorandum of appeal is not fatal because it need not be included in the record of appeal and defects may be amended with leave

Reasoning

Under rule 85 of the Court of Appeal Rules the memorandum of appeal is not among the documents that must be included in a record of appeal. It may be filed separately, and any defect in content or form may be regularised with leave by filing an amended copy. This ground therefore did not independently justify striking out, though the appeal failed on the other grounds.

p. 2

Legal principles established

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  • Where a party fails to copy its letter bespeaking proceedings to the opposite counsel as mandatorily required by rule 81, it cannot rely on the proviso to rule 81 to extend the time for filing the record of appeal, and an appeal filed out of time without leave is incompetent
  • A decree or order is a primary document; non-compliance with Order XX rules 6 and 7(2) of the Civil Procedure Rules renders it fatally defective
  • The memorandum of appeal need not be included in the record of appeal under rule 85, and defects in it may be regularised with leave

Court orders

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  1. 1.The application is allowed
  2. 2.The appeal (Civil Appeal No. 56 of 2000) is struck out
  3. 3.Costs of both the application and the appeal are awarded to the applicant
On appeal from
High Court of Kenya at Kisumu
H.C.C.C No. 241 of 1998
Jurisdiction invoked
Rules 80, 82, 84 and 104 of the Court of Appeal Rules (application to strike out an appeal)

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, "Kenya Iron Mongers Limited v Muhoroni Sugar Company Limited", Case Analysis (2000). Civil Application No. NAI. 148 of 2000 (KSM 16/2000). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/78/eng@2000-06-21

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