Kanyago & 2 others v Mereka (Civil Appeal 94 of 2001) [2001] KECA 204 (KLR)
The bottom line
#The Court of Appeal threw out the appeal because the defendants challenged damages they had already agreed to and filed their appeal late.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether it was open to the appellants to challenge on appeal the quantum of special damages which they had agreed by consent before the trial court.
- 2.Whether the Notice of Appeal complied with rule 74(3) of the Court of Appeal Rules, which requires an appellant to state whether the appeal is against the whole or part of the decision and to specify the part complained of.
- 3.Whether the record of appeal was lodged out of time, including whether the certificate of delay could be relied upon and when time begins to run under the proviso to rule 81 of the Rules.
Key legal issues
#Whether special damages agreed by consent can be challenged on appeal
No. Section 67(2) of the Civil Procedure Act bars appeal from a consent decree; by expressing dissatisfaction with the consented special damages the appellants sought to revive an issue the parties had agreed would not be adjudicated.
Before trial the parties recorded a consent order fixing special damages, and no evidence was led on that head at the hearing. Section 67(2) of the Civil Procedure Act bars appeal from a decree passed by consent. Although the agreed damages were conditional on liability being found, once the trial judge found liability the consented figure stood. By indicating dissatisfaction with that figure in the Notice of Appeal, the appellants attempted to revive an issue the parties had agreed would not be the subject of adjudication.
Compliance with rule 74(3) of the Court of Appeal Rules
The Notice of Appeal offended rule 74(3), which is worded in mandatory terms; because the Rules do not permit amendment of primary documents, the notice was incurably defective and rendered the appeal incompetent.
Rule 74(3) requires a notice of appeal to state whether the appeal is against the whole or part only of the decision and, where it is against part only, to specify the part complained of. The rule is mandatory. The Notice of Appeal challenged the consented special damages without conforming to the rule, and since the Rules do not permit amendment of primary documents, the defect could not be cured. The result was that the appeal itself was incompetent.
The weight and validity of a certificate of delay
A certificate of delay is not binding on the Court; a misleading certificate may be ignored, and the duty to prepare it lies with the Registrar of the superior court and must not be delegated to litigants or counsel.
The certificate asserted that copies were ready on 8th March 2001 and received by counsel on 16th March 2001, yet claimed preparation time up to 27th March 2001 - internally inconsistent and apparently slanted to conceal late filing. The court noted a growing practice of advocates preparing certificates tailored to circumvent rule 81, reaffirmed that the Registrar bears the ultimate responsibility for accuracy, and held that a misleading certificate is not binding and may be ignored by the Court.
When time begins to run under the proviso to rule 81
Only the period actually required for preparation and delivery of copies is excluded; time runs from receipt of the notice of readiness, or the date receipt would be expected in the usual course of postage.
The words 'required for the preparation and delivery' in rule 81 bear their ordinary meaning: only the time the superior court required to make the copies ready, plus the period necessary to transmit the notice to that effect, is excluded. Rule 81 is worded in mandatory terms. Time therefore starts running from the date of receipt of the notice, or the date when in the usual course of postage it would be expected to be received - here four days for mail within Nairobi.
Legal principles established
#- No appeal lies from a decree passed by consent of the parties; a party cannot challenge on appeal quantum it consented to before the trial court.
- A notice of appeal that fails to conform to rule 74(3) - stating whether the appeal is against the whole or part only of the decision and specifying the part complained of - is incurably defective and renders the appeal incompetent, and the Court of Appeal Rules do not permit amendment of primary documents.
- A certificate of delay is not binding on the Court; if misleading it may be ignored, and the duty to prepare it rests with the Registrar of the superior court and must not be delegated to litigants or their counsel.
- Under the proviso to rule 81, only the period actually required for the preparation and delivery of copies of proceedings and judgment is excluded from computation; time begins to run from the date of receipt of the notice that copies are ready, or the date when, in the usual course of postage, that notice would be expected to be received.
Court orders
#- 1.The motion dated 8th May 2001 is allowed.
- 2.The Notice of Appeal is struck out.
- 3.The Record of Appeal is struck out.
- 4.The applicant (respondent) is awarded the costs of the motion and the appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 78 of 2000
- Jurisdiction invoked
- Rule 80 of the Court of Appeal Rules - the court's power to strike out a Notice of Appeal and Record of Appeal on the court's own motion procedure by way of an application under the Rules
Relief refused
#The appellants' attempt to sustain an appeal against the special damages they had agreed by consent
Section 67(2) of the Civil Procedure Act bars an appeal from a consent decree; the Notice of Appeal sought to revive an issue the parties had agreed would not be adjudicated by the trial court.
The appellants' reliance on the certificate of delay to establish that the record of appeal was lodged in time
The certificate was internally inconsistent and misleading, and the Court is entitled to ignore a misleading certificate; even on the appellants' own dates the record of appeal was lodged out of time.
Costs
The applicant shall have the costs of the motion and the appeal.
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.
In the result we allow the motion dated 8th May 2001 and strike out the notice of appeal and the record of appeal as prayed. The applicant shall have the costs of the motion and the appeal.
It then follows that to give rule 81 reasonable construction, time starts to run from the date of receipt of the notice from the court or such date when, in the usual course of postage, the notice would be expected to be received by the appellant.
If as here, the Court is of the opinion that a certificate of delay is misleading it is entitled to ignore it.
The duty to prepare a certificate of delay is on the Registrar of the superior court. It is a duty he should not delegate to the litigants or their counsel.
As the appellants' notice of appeal does not accord with rule 74(3), above, which is worded in mandatory terms, and in view of the fact that the Rules do not permit amendment of primary documents the notice of appeal is incurably defective and renders the present appeal incompetent.
67(2) No appeal shall lie from a decree passed by the Court with the consent of parties.
Rule 81, is in our view, worded in mandatory terms.
Issues in the judgment
#The itemised special damages in the consent order quoted in the judgment (shs.1,000 + shs.309,914.85 + shs.200,000 + shs.20,000 = shs.530,914.85) do not add up to the stated total of shs.430,014.85, which the trial judge in turn added to the general damages of Kshs.4,010,000 to reach Kshs.4,440,014.85.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Thermos Hong Kong Limited v Doshi Ironmongers Limited (Civil Appeal E013 of 2021) [2023] KECA 1436 (KLR)[2023] KECA 1436 (KLR)24 Nov 2023applied
Cite this brief
#Cite this brief
Caselaw, "Kanyago & 2 others v Mereka (Civil Appeal 94 of 2001) [2001] KECA 204 (KLR)", Case Analysis (2001). Civil Appeal No. 94 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/204/eng@2001-11-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.