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Court of AppealOtherCivil Appeal (Application) 222 of 2008

James Obande v Isaiah Juma & another [2010] KECA 318 (KLR)

Court of Appeal of Kenya
30 April 2010
1,458 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal struck out a late succession appeal because the appellant filed 27 days past deadline and his record lacked a certified order.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Kisumu (Bosire, Onyango Otieno and Nyamu, JJA) on a notice of motion dated 12th November 2008 by the respondents, Isaiah Juma and Patricia Obuya, seeking to strike out the appellant's appeal. The appeal challenged a ruling of Mwera J delivered on 15th June 2008 in H.C. Succession Cause No. 418 of 2001, revoking a grant of letters of administration issued to the appellant and revoking transfers of two land parcels, KABONDO/KODUMO EAST/370 and 392. The respondents argued the appeal was filed out of time without leave, that the record lacked a certified copy of the order appealed from, and that the notice of appeal was defective. The appellant did not file a replying affidavit and left the matter to the court. The court found the appeal, filed on 13th October 2008, was about 27 days late, since time ran from 16th July 2008 when proceedings were supplied, and certified copies were not needed to lodge an appeal. It further found the copy of the order appealed from uncertified, contrary to Rule 85, whose omission may be fatal. On leave, it held none was required, as the succession ruling finally determined the parties' issues, the Succession Act was silent, and section 66 of the Civil Procedure Act applied. The overriding objective provisions of the Appellate Jurisdiction Act could not assist the appellant, who had himself caused delay. The motion succeeded and the appeal was struck out with costs to the respondents.

Questions the Court framed

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

  1. 1.Whether the appeal was filed out of time without leave of the Court
  2. 2.Whether certified copies of proceedings were necessary before lodging the appeal
  3. 3.Whether the record complied with Rule 85 of the Court's Rules, including a certified copy of the order appealed from
  4. 4.Whether leave of the superior court was required before lodging an appeal from a ruling in a succession cause

Key legal issues

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01

Timeliness of filing the appeal

Holding

The appeal filed on 13th October 2008 was about 27 days out of time, as the appellant had to file within sixty days of being supplied with proceedings on 16th July 2008, and waiting for certified copies did not excuse the delay

Reasoning

The certificate of delay showed the appellant was supplied with copies of proceedings on 16th July 2008. The sixty-day period ran from that date, expiring 16th September 2008. Since certified copies are not a prerequisite to lodging an appeal, the appellant could not rely on waiting for them, and the appeal was lodged out of time without leave.

p. 2
02

Compliance with Rule 85 of the Court of Appeal Rules

Holding

The record failed to include a certified copy of the order appealed from; the copy at page 177 was uncertified and improperly drawn, an omission that may be fatal

Reasoning

Rule 85 specifies what must be included in a record of appeal, including a certified copy of the decree or order appealed from. The order in the record was uncertified on its face and not properly drawn. The court treated this non-compliance, together with out-of-time filing, as independently justifying striking out the appeal.

p. 2
03

Whether leave was required to appeal from the succession ruling

Holding

Leave was not required; the High Court ruling finally determined the parties' issues, and the Succession Act is silent on leave for such appeals, so section 66 of the Civil Procedure Act applies

Reasoning

The court held that Mwera J's ruling made orders that finally determined the issues between the parties. The Succession Act makes no specific provision on leave to appeal to the Court of Appeal from the High Court's original jurisdiction, and section 75 of the Civil Procedure Act was irrelevant; section 66 provides that an appeal lies from decrees and orders of the High Court to the Court of Appeal.

p. 2

Legal principles established

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  • Certified copies of proceedings are not necessary for mounting a competent appeal; delay in obtaining them does not extend the time for filing an appeal
  • A certified copy of the decree or order appealed from is a requirement of Rule 85, and its omission may be fatal depending on the circumstances
  • Appeals to the Court of Appeal from orders of the High Court in its original jurisdiction in succession matters lie as of right under section 66 of the Civil Procedure Act; leave is not required

Court orders

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  1. 1.Civil Appeal No. 222 of 2008 struck out
  2. 2.Costs of the appeal and of the notice of motion dated 12th November, 2008 awarded to the respondents

The bench

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

majority
majority
On appeal from
High Court of Kenya at Kisumu
H.C. Succession Cause No. 418 of 2001
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal under the Appellate Jurisdiction Act and section 66 of the Civil Procedure Act, on a notice of motion to strike out the appeal under the Court of Appeal Rules

Relief refused

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The appellant's continued prosecution of the appeal

The appeal was filed out of time without leave and the record lacked a certified copy of the order appealed from

p. 2

Costs

Costs to the respondents, as applicants in the notice of motion, both of the appeal and of the application dated 12th November, 2008

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.

In short, the notice of motion succeeds. Civil Appeal No. 222 of 2008 is struck out with costs to the respondent (applicant in this application) both of the appeal and the application dated 12 th November, 2008.
p. 2Final orders - appeal struck out
This Court has said on several occasions that certified copies of proceedings are not necessary for purposes of mounting a competent appeal.
p. 2Certified copies not required to lodge appeal
Certified copy of the decree or order appealed from is a requirement. The omission may be fatal, depending on the circumstances in a particular matter.
p. 2Rule 85 record requirements
Except where otherwise expressly provided in this Act, and subject to such provisions as to the furnishing of security as may be prescribed, an appeal shall lie from the decrees or any part of decree and from the orders of the High Court to the Court of Appeal.
p. 2Section 66 Civil Procedure Act - appeal as of right

Issues in the judgment

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minor

The 2nd respondent is named 'PATRICIA OBUYA' in the cause title but 'Patrick Abuya' in the body of the ruling

minor

The appellant is named 'JAMES OBANDE' in the cause title but 'James Obande Owuor' in the body of the ruling

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, "James Obande v Isaiah Juma & another [2010] KECA 318 (KLR)", Case Analysis (2010). Civil Appeal (Application) 222 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/318/eng@2010-04-30

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