[1981] KECA 32 (KLR)
The appeal was struck out as incompetent due to the appellant's failure to serve the notice and record of appeal within the time limits prescribed by the Court of Appeal Rules, and for failing to include a copy of the decree or formal order in the record of appeal as required by rule 85(1)(h). The Court found no...
Source-derived case information.
- Citation
- [1981] KECA 32 (KLR)
- Parties
- Appellant: Kaduda; Respondent: Douglas
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 27 of 1981
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal struck out with costs
- Legal Topics
- Appeal Striking Out, Service of Process, Custody of Infants, African Customary Law, Welfare of Child
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kaduda
Appellant
Douglas
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appeal should be struck out for failure to comply with mandatory rules regarding service of the notice and record of appeal.
- 2 Whether the absence of a decree or formal order in the record of appeal renders the appeal incompetent.
- 3 Whether African customary law can override statutory provisions in matters of infant custody.
Ratio Decidendi
The appeal was struck out as incompetent due to the appellant's failure to serve the notice and record of appeal within the time limits prescribed by the Court of Appeal Rules, and for failing to include a copy of the decree or formal order in the record of appeal as required by rule 85(1)(h). The Court found no sufficient reason to extend time, as the appellant's explanation of oversight was inadequate. Furthermore, even if the appeal had proceeded, the statutory requirement that the welfare of the infant is paramount in custody matters would have superseded any inconsistent customary law, as established in the Guardianship of Infants Act and affirmed in prior case law.
Court Disposition
appeal struck out with costs
Orders
- The appeal is struck out as incompetent.
- The appellant shall pay the costs of the appeal.
Full Case Text
Judgment text and source record
26 paragraphs
IN THE COURT OF APPEAL
AT MOMBASA
( Coram: Wicks CJ, Law & Miller JJA )
CIVIL APPEAL NO. 27 OF 1981
BETWEEN
KADUDA................................................................................APPELLANT
AND
DOUGLAS........................................................................RESPONDENT
JUDGMENT
When the hearing of this appeal began Mr Jiwaji for the first respondent took the preliminary objection that the notice of appeal was not served in accordance with rule 76 (1) of the rules of this Court, and that the record of appeal was not served in accordance with rule 87(1). The facts are that the notice of appeal, which should have been served within seven days of the date of filing (March 19, 1981) was not served until April 1, 1981, five days out of time; and the record of appeal, which was filed on May 13, 1981, which should have been served within seven days thereafter had not been served by the July 24, 1981, when Mr Jiwaji filed his notice of motion. The responsibility for effecting service is in each case placed upon the appellant by the relevant Rule. Mr Chalalu for the appellant has taken no steps before today to apply for extensions of time and so regularise these procedural defects. He has applied informally today, and his reason for not complying with the Rules is that the failure was due to an oversight, as he thought the Registry would effect service.
In our view Mr Chalalu has failed to satisfy us that sufficient reason has been shown for extending time under rule 4. Rule 76(1) and rule 87(1) make it clear that it is for the appellant to serve the record.
It is however a fact that Mr Chalalu has not had two clear days’ notice as required by rule 49(1), but this was not Mr Jiwaji’s fault as he was not served with the record until yesterday.
A more serious defect is that the record of appeal does not contain a copy of the decree or formal order, as required by rule 85(1)(h) of the Rules of this Court. Indeed, we are informed that no such decree or formal order has ever been extracted. This being so, the record is incapable of amendment by inclusion of the missing essential document out of time. The consequence is that this appeal is incompetent and must be struck out with costs, and we so order. If it is any consolation to the appellant, it would seem that in any event the appeal had little chance of success. Reliance is placed throughout the memorandum of appeal on the importance of applying African customary law, in accordance with Section 3(2) of the Judicature Act (Cap 8). But that application is subject to the customary law not being inconsistent with any written law. This appeal concerns the custody of infants. By Section 17 of the Guardianship of Infants Act (Cap 144), the welfare of the infant is the “first and paramount consideration”. This written law supersedes the relevant African customary law, as was pointed out by Mosdell J in Wambwa v Okumu[1970] EA 578, and the judgment of Kneller J the subject of this appeal was, we are satisfied, based on the correct principles applicable to the case as presented to him.
Dated and Delivered at Mombasa this 28th day of July 1981.
S.J.WICKS
............................
CHIEF JUSTICE
E.J.E.LAW
..................................
JUDGE OF APPEAL
C.H.E.MILLER
................................
JUDGE OF APPEAL
I certify that this is a true copy
of the original.
DEPUTY REGISTRAR