Gregory Kiema Kyuma v Marietta Syokau Kiema
Court of Appeal, at Nairobi
November 17, 1988
Gachuhi, Apaloo JJA & Kwach Ag JA
Civil Appeal No 16 of 1988
(Appeal from a Ruling of the High Court at Nairobi, Shields J)
Appeal – appeals from subordinate court to the High Court – form and time in which such appeals should be made – certificate of delay – period which certificate should refer to – certificate issued for the time taken in preparing proceedings and judgment – whether such period taken into account in computing the time for filing appeal – whether certificate of delay proper – whether appeal competent - Civil Procedure Act (cap 21) section 65, 79G – Civil Procedure Rules order XLI rule 1A.
The respondent instituted proceedings against the appellant, her husband, in the Resident Magistrate’s court for custody of their children and maintenance. Judgement was given in the respondent’s favour on 5th December, 1986.
On 5th January, 1987, the appellant applied for “a certified copy of the proceedings and judgment/orders”. These were later obtained and the subordinate court issued the appellant with a certificate of delay stating that the time required for preparing “the proceedings and judgment was 5th January 1987 to 2nd April 1987”.
The appellant nevertheless sought an extension time to file his appeal.
The extension was granted on condition that he was to deposit some money in court. His appeal, which included a prayer for an injunction, was filed on 29th April, 1987 but owing to his failure to deposit the sum ordered, the appeal was struck out.
Moreover, the judge observed that because the certificate of delay related not to the period for the preparation of the decree or order but of the certified copies of the proceedings and judgment, the appeal was out of time and therefore, there was no pending appeal on which he could grant the injunction sought.
The appellant appealed.
1. The right of appeal from a subordinate court to the High Court is conferred by the Civil Procedure Act (cap 21) section 65 and the time for filing appeals is governed by section 79G of that Act.
2. An appellant is required, within thirty days from the date of the decree or order or within a period extended by a certificate of delay, to file a Memorandum of Appeal in the prescribed form and a copy of the formal order of the Court, if available. Under the Civil Procedure Rules order 41 rule 1A, the latter document can be filed as soon as possible and in any event within such time as the court may order.
3. A certificate of delay within the true intendment of section 79G of the Civil Procedure Act (cap 21) must certify the time it took to prepare and deliver to the appellant “a copy of the order” of the Magistrate.
4. The certificate of delay exhibited by the appellant did not speak of an order, and no such order was sought or extracted. What the appellant had mistakenly sought and what the court had supplied were “the proceedings and judgments”.
5. This meant that the appellant did not file a Memorandum of Appeal within thirty days and had no valid certificate of delay within the true contemplation of section 9G.
6. The appellant could only file a competent appeal if the court granted him an extension of time. Since such extension was granted on terms and the appellant failed to comply with the terms, the judge was entitled to strike out the appeal. The judge was also right in finding that there was no pending appeal on which he could grant an injunction.
No cases referred to.
1. Civil Procedure Act (cap 21) sections 65; 65(1), 79G
2. Civil Procedure Rules (cap 21 Sub Leg) order XLI rules 1A, 1(1); Appendix 1 Form 1
Mr Mureithi for the Appellant