Ayub Murumba Kakai v Town Clerk of Webuye County Council [2010] KECA 301 (KLR)
The bottom line
#Kenya's Court of Appeal refused to kill an appeal over minor service mistakes, prioritizing fair hearing of cases over strict technicality.
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 and record of appeal should be struck out for failure to serve the memorandum of appeal within the time limited by Rule 87(1) of the Court of Appeal Rules
- 2.Whether the appeal is incompetent because the notice of appeal was not served on the intended respondent
- 3.Whether an appeal lies against a decree passed with the consent of parties under section 67(2) of the Civil Procedure Act
- 4.Whether the record of appeal is defective for omitting page 2 of a supporting affidavit contrary to Rule 85(1) of the Court of Appeal Rules
Key legal issues
#Whether a one-day delay in service of the memorandum of appeal, and non-service of the notice of appeal, justify striking out an appeal
No. The application to strike out was dismissed as contrary to the overriding objective; the court instead ordered service of the notice of appeal within seven days so the appeal could be heard on merit.
The court invoked the newly inserted sections 3A(1) and 3B(1) of the Appellate Jurisdiction Act, which oblige the Court to seek just, expeditious, proportionate and affordable resolution of appeals and to make efficient and timely disposal of proceedings. Striking out the appeal for a one-day lapse, where the memorandum had in fact been served one day before the expiry of the prescribed time, would not act justly; the non-service of the notice of appeal was a curable irregularity remediable by an order for service.
Whether counsel's procedural applications of this kind impede the efficient disposal of appeals
The court deprecated such applications as obstacles to expeditious disposal, drawing counsel's attention to the overriding objective provisions.
The court observed that the striking-out application exemplified applications that obstruct rather than assist expeditious disposal, and directed counsel to the overriding objective provisions inserted by the Statute Law (Miscellaneous Amendments) Act No. 6 of 2009. This signals that procedural striking-out applications based on technical defaults will be measured against the just, expeditious, proportionate and affordable resolution of appeals rather than applied mechanically.
Legal principles established
#- The overriding objective in sections 3A and 3B of the Appellate Jurisdiction Act requires the Court to facilitate the just, expeditious, proportionate and affordable resolution of appeals, and a court would not act justly in striking out an appeal for a trivial procedural default where the defect can be cured by an order for service
- Where a memorandum of appeal was served before the expiry of the prescribed time and only the notice of appeal went unserved, the court may order service of the notice of appeal within a reasonable time so that the appeal is heard on merit rather than struck out
Court orders
#- 1.The notice of motion dated 18th June, 2009 and filed in Court on 26th June, 2009 is dismissed
- 2.The respondent (appellant in the appeal) to serve the notice of appeal on the applicant within seven days of the date of the ruling
- 3.Costs of the application to be paid by the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Misc. Application No. 448 of 2006
- Jurisdiction invoked
- Sections 3A(1) and 3B(1) of the Appellate Jurisdiction Act and Rules 42, 76(1), 180, 85(1)(b) and 87(1) of the Court of Appeal Rules
Relief refused
#Striking out of Civil Appeal No. 107 of 2009 lodged on 29th May, 2009
Striking out the appeal for a one-day delay in service of the memorandum of appeal, where service was made before expiry of the prescribed time, would be contrary to the overriding objective; non-service of the notice of appeal could be cured by an order for service
Costs
Costs of the application shall be paid by the respondent (Town Clerk of Webuye County Council)
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.
The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the appeals governed by the Act.
as regards the non service of the notice of appeal, the Court could order its service on the affected party within a reasonable time so as to have the appeal heard on merit
we think this is a typical example of applications which might be more of an obstacle than assistance in achieving expeditious disposal of proceedings
Accordingly, the notice of motion dated 18th June, 2009 and filed in Court on 26th June, 2009 is hereby dismissed but we order that the respondent do serve the notice of appeal on the applicant within seven days of the date hereof.
Issues in the judgment
#The court decided the application on grounds 1 and 2 (service defects) but did not determine the substantively weightier ground that no appeal lies from a consent decree under section 67(2) of the Civil Procedure Act, despite that ground being among those relied on by the applicant; the judgment leaves this question open
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ayub Murumba Kakai v Town Clerk of Webuye County Council [2010] KECA 301 (KLR)", Case Analysis (2010). Civil Appeal (Application) No. 107 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/301/eng@2010-05-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.