[1983] KECA 7 (KLR)
The appellant failed to comply with the mandatory rules requiring timely service of the Notice of Appeal and Memorandum of Appeal, and failed to include a certified copy of the order appealed against in the Record of Appeal. The only explanation offered for these lapses was the advocate's own omission, which does...
Source-derived case information.
- Citation
- [1983] KECA 7 (KLR)
- Parties
- Appellant: Andrew A Apiyo; Respondent: Michael M O Mashere
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 32 of 1982
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection and Application for Extension of Time
- Outcome
- appeal struck out as incompetent
- Legal Topics
- Appeal Timelines, Service of Process, Extension of Time, Incompetent Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Andrew A Apiyo
Appellant
Michael M O Mashere
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection and Application for Extension of Time
Legal Issues
- 1 Whether the appellant complied with the mandatory timelines for service of Notice of Appeal and Memorandum of Appeal as required by the Court of Appeal Rules.
- 2 Whether sufficient cause was shown to warrant extension of time for service of the Notice of Appeal and Memorandum of Appeal.
- 3 Whether failure to include a certified copy of the order appealed against in the Record of Appeal renders the appeal incompetent.
Ratio Decidendi
The appellant failed to comply with the mandatory rules requiring timely service of the Notice of Appeal and Memorandum of Appeal, and failed to include a certified copy of the order appealed against in the Record of Appeal. The only explanation offered for these lapses was the advocate's own omission, which does not amount to sufficient cause under rule 4 of the Court of Appeal Rules. The court held that strict compliance with procedural rules is essential, and in the absence of sufficient cause for the delay, the court could not exercise its discretion to extend time. Consequently, the appeal was struck out as incompetent.
Court Disposition
appeal struck out as incompetent
Orders
- The appeal is struck out as incompetent.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAKURU
civ app 32 of 82[1]
(Coram: Madan and Kneller, JJ A and Chesoni, Ag. J A) CIVIL APPEAL NO. 32 OF 1982
BETWEEN
ANDREW A APIYO ………………………..…………… APPELLANT
AND
MICHAEL M O MASHERE …………………………… RESPONDENT
(Appeal from the Ruling of the High Court of Kenya at Eldoret (Mbaya, J) dated 7th May, 1982 in
Civil Case No. 111 of 1976 ……………………...)
RULING OF THE COURT
The respondent objects to this appeal being prosecuted on the grounds that he was not served with Notice of Appeal within time which was file on 14th May, 1982 and should have been served within 7 days (rule 76 (1); secondly, the respondent was also not served with the Memorandum of Appeal and the record of Appeal within seven days after lodging it on 14th July, 1982 (rule 87 (1).
Mr Kamau who appears for the appellant concedes that the two aforementioned rules were not compiled with as two documents were served on the respondent as late as 30th October, 1982. There is also a breach of rule 85 (1) (h) as much as certified copy of the order sought to be appealed against is not included in the Record of Appeal. Mr Kamau has applied for extension of time so that Notice of Appeal and the Memorandum of Appeal shall be deemed to have been served within time. He has also applied extension to file the order out of time.
In order to succeed Mr Kamau has to bring himself within rule s4 by showing sufficient cause to explain why the required steps were not taken timeously. He is gallant enough to admit freely that the lapses which occurred happened due to ommision on his part. That is not sufficient cause. We are therefore unable to accede to his request.
The appeal is ordered to be struck out as incompetent, with costs to the respondent.
Order accordingly.
Dated at Nakuru this 5th day of October, 1983.
C B MADAN ……………….
JUDGE OF APPEAL
A A KNELLER ………………..
JUDGE OF APPEAL
Z R CHESONI ……………….
AG. JUDGE OF APPEAL