[1955] EACA 294

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR NEWNHAM WORLEY (Vice-President), SIR ENOCH JENKINS, Justice of Appeal, and BRIGGS, Justice of Appeal

KIMEGO ARAP SIRIMA, Appellant (Original Plaintiff)

SHEIKH HASSAN, Respondent (Original Defendant) Civil Appeal No. 2 of 1955

(Appeal from the decision of H. M. Supreme Court of Kenya, Harley, Ag. J.)

Appeal—Filing of memorandum of appeal in District Registry—Date of Filing— Civil Procedure (Revised) Rules, 1948, Order XLVI, rule 9.

By Order XLVI, rule 9, aforesaid: "An appeal from a decree or order of a subordinate court or a subordinate native court to the Supreme Court may be filed in the District Registry within the area of which such subordinate court or subordinate native court is situate; and the District Registrar shall (upon the payment to him of all fees) endorse the date of filing upon the memorandum of appeal, and send forward the papers to the Registrar of the Supreme Court. The Registrar will give such directions for the hearing and disposal of such appeal as he may consider reasonable, having regard to the convenience of the parties and the date at which a hearing can take place".

The appellant sued the respondent in the court of the Resident Magistrate, Eldoret, for a sum of money. Upon the suit being dismissed, the appellant, within the time limited for appeal and in accordance with the prevailing practice, sent a letter to "The Registrar, Supreme Court of Kenya, Nairobi, through the District Registrar, Eldoret", enclosing a memorandum of appeal, a copy of the judgment and a blank cheque. Upon its receipt in the District Registry the memorandum was endorsed with the date of its receipt therein, and was forwarded, with the copy judgment and cheque to the Registrar of the Supreme Court. He, after some correspondence with the appellant's advocate, registered the appeal, but, by that time, the period limited for filing the appeal had run out.

It was contended for the respondent that the appeal had not been filed nor the fees paid in the District Registry which had merely been used as a forwarding agent.

Upon first appeal, the Supreme Court held that the appeal had been filed out of time.

Held (7-4-55).—In view of the prevailing practice, the appellant had done all in his power<br>to comply with Order XLVI, rule 9 aforesaid and the failure of the District Registrar<br>to follow exactly the provisions of the rule its having been filed.

Appeal allowed. Case remitted to Supreme Court to be heard and determined on its merits.

Gautama for appellant. Ahmed for respondent.

JUDGMENT (prepared by Worley, Vice-President).—The appellant herein sued the respondent in the Resident Magistrate's Court at Eldoret for the sum of Sh. 460 being the price of 30 bags of maize plus Sh. 60, the value of 30 sacks. His suit was dismissed and the appellant, being desirous of appealing to the Supreme Court, instructed his advocate, Mr. Gautama, to take the necessary steps towards filing that appeal. On 28th October, 1953, Mr. Gautama sent a letter addressed to "The Registrar, Supreme Court of Kenya, Nairobi, through the District Registrar, Eldoret," enclosing a memorandum of appeal, together with a copy of the judgment in the suit, for filing. With the letter he also enclosed memoranda of appeal in two other cases together with a blank cheque to be filled in for the amount of Court fees in all three appeals. The District Registrar, Eldoret, marked the memorandum of appeal "Received on 28th October. 1953," and forwarded it, together with the other memoranda and the cheque, to the Registrar, Nairobi. This was within the time limited by the Supreme Court Rules for the filing of an appeal from a subordinate court. On the 5th November, 1953, the Deputy Registrar, Nairobi, wrote to Mr. Gautama asking for the complete addresses of the respondents to the three appeals and also asked for separate blank cheques for each appeal. This letter appears to have been answered fairly promptly for on 14th November the Deputy Registrar, Nairobi, sent Mr. Gautama his receipt for the court fees in the appellant's appeal and apparently registered the appeal as on that date. By then the time limited for filing the appeal had run out.

When the appeal came on for hearing before a Judge of the Supreme Court the respondent's advocate took the objection that it was filed out of time. The objection was upheld and the appeal dismissed with costs. From that order of dismissal the appellant appeals to this Court.

When the appeal was called before us the Court took the objection that it was not competent by reason of the provisions of section 74 of the Civil Procedure Ordinance which reads:-

"No second appeal shall lie in any, suit when the amount or value of the subject matter of the original suit does not exceed one thousand shillings, unless special leave has been first obtained from the second appellate court.

Mr. Gautama admitted that he had overlooked the need of obtaining special leave but applied informally for such leave on the ground that his appeal involved a question of practice of some importance. After consideration, we granted special leave on the terms that the appellalnt should not, in any event, have any costs of the appeal.

The issue raised by the appeal was whether the appellant had complied with Order XLVI, rule 9, of the Civil Procedure (Revised) Rules, 1948, which reads: -

"An appeal from a decree or order of a subordinate court or a subordinate native court to the Supreme Court may be filed in the District Registry within the area of which such subordinate court or subordinate native court is situate; and the District Registrar shall (upon the payment to him of all fees) endorse the date of filing upon the memorandum of appeal, and send forward the papers to the Registrar of the Supreme Court. The Registrar will give such directions for the hearing and disposal of such appeal as he may consider reasonable, having regard to the convenience of the parties and the date at which a hearing can take place."

Mr. Ahmed, for the respondent, contended that the appeal to the Supreme Court had never been filed, nor the fees paid, in the District Registry, and that the appellant had used the District Registrar merely as his agent to forward the papers to Nairobi. The learned Judge in the court below appears to have accepted

that view, but before us counsel agreed that in practice the District Registry, Eldoret, does not keep a register of appeals filed there, nor does the District Registrar receive fees and issue receipts for them. His practice is to forward fees to Nairobi as was done in the instant case. That being so, it seems evident to us that the appellant had done all that lay in his power to comply with Order XLVI, rule 9, and that the failure of the District Registrar to follow exactly the provisions of the rule cannot prejudice the appellant. The District Registrar did, as we have said, stamp the memorandum of appeal as received in his Registry on 28th November and, in the circumstances, having regard to the admitted practice, this must be regarded as equivalent to filing the appeal on that date.

We therefore allowed the appeal, set aside the order of the Supreme Court appealed from, and remitted the matter to the Supreme Court to be heard and determined on the merits. We further ordered that each party should bear his own costs of the appeal to this Court.