CIVIL PROCEDURE II Lecture 2 28th January 03

APPEALS

Every decree may be appealed from unless barred by some law. However an appeal does not
automatically lie against every order. Order 42 Rule 1 gives a long list of orders from which an appeal lies
from as of right.

If you want to appeal on an order that is not on the list, you have to seek leave of court. When you have
a judgment you extract a decree. Orders are gotten from small interim applications.

You can appeal against an order.

Amendments of pleadings, appeals lie as of right. Judgement in default is appealable.

For example the Armed Forces Act if you have a decision you can appeal to the High Court. High court
used to be the final court for petitions but now you can go to the court of appeal

Application for leave to Appeal should be made in the first instance to the court which made the order that
is being sought to be appealed against. It should be made by Chamber Summons or orally in court at the
time of making the order.

Appeals generally or the hierarchy of appeal

An appeal from the subordinate Courts

Appeals from the Resident Magistrates court lie to the High Court. Appeals from the High Court lie to the
court of Appeal.

Appeals from the subordinate courts are heard by one judge of the high court except in certain particular
cases where the Chief Justice can direct that the appeal be heard by two or more judges. Such
directions may also be given by the Chief Justice before the hearing of an appeal or at any time before
the judgment is received.

Where there are two judges and they disagree, under Section 60 where an appeal is heard by a court
consisting of two or more judges, the appeal should be decided in accordance with the decisions of the
majority of the judges. In a case of two judges with a divided opinion, the appeal should be dismissed
and to prevent that they normally put an uneven number of the Judges on the bench. Section 60 it says
that the opinion of the majority of judges should be upheld but Order 40 says that where the court is
equally divided, the Appeal should be dismissed. Section 60 will take precedent in this case. Read
Githunguri case.

When a decision has failed to determine some material issues of the law
It also has something to say where it was alleged that there was substantial error or defect in the
procedure.

HOW ARE APPEALS FILED?

Appeals from the High Court are filed by lodging a memorandum of appeal which is usually set out in the
same manner as pleadings. The grounds are set out in separate paragraphs and numbered

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consecutively and normally the ground will indicate the reasons why you object to the decision of the
court. It is very important to make sure that your grounds are set out comprehensively because you will
not be able to make submissions on any grounds not set out in your memorandum of appeal. You would
have to seek the leave of the court to submit on a new ground. The court has discretionary powers and
can deny you to do that.

The detailed format on how to prepare a memorandum of appeal is set on in Sections 65-69 and in order
41. Section 65-69 enact the substantive law as regards fast appeals while order 41 lays down the
procedure relating to it. The expression appeal and the expression memorandum of appeal denote two
distinct things. The Appeal is a judicial examination by the higher court of the decision of a lower court.
Whereas the memorandum of appeal contains the grounds on which the judicial examination is invited.

In order for an Appeal to be said to be validly presented, the following requirements must be complied
with
1. It must be in the form of a memorandum setting forth the grounds on which one objects to
the decree.
2. It must be in the format and present as a record of Appeal.
3. It must be signed by the Appellant or their Agent.
4. It must be presented to the Court or to such officer as appointed by the court.
5. The Memorandum must be accompanied by a certified copy of the decree.
6. It must be accompanied by a certified copy of the judgment unless the court dispenses with
it.
7. Where the Appeal is against a money decree the Appellant must deposit the decretal amount
or furnish the security if required by the court.

HOW TO PREPARE A MEMORANDUM OF APPEAL

A Memorandum of Appeal should be prepared by carefully considering the following:-

1. The Pleadings;
2. The Issues issues substantially in issue
3. The Findings thereon;
4. The Judgment and the decree and also the record of proceeding in court. (the judge erred
and misdirected himself in issues raised before him)

You can only appeal on one issue. Suppose the court finds you negligent and thus liable. You can
appeal on the ground of damages and say for instance that the judge erred in assigning the quantum of
damages.

PRESENTATION OF THE APPEAL

The Appeal must be presented within a prescribed time. If the limitation period for filing an Appeal has
expired, you can apply for an extension of time to file the appeal.

Read the Appellate Jurisdiction Act (Court of Appeal Rules)

STAY OF EXECUTION

The Appeal does not operate as a stay of execution. Even if an appeal has been lodged, and all parties
served, the decree holder can proceed and apply for execution. However the judgment debtor can apply
for a stay of execution on the ground that an appeal is intended or that an appeal has been filed. If no

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appeal has been filed but is intended the application for stay of execution should be made to the court
that has given the order or the decree but an appeal has already been filed, the application for stay
should be made to the appellate court.

WHEN IS AN APPEAL DEEMED TO HAVE BEEN FILED?

For the purposes of a stay of execution an appeal is deemed to have been filed as soon as the notice of
appeal is filed.

Application for stay of Execution

Kiambu Transporters V. Kenya Breweries

It is made by way of Notice of Motion under Order 41 Rule 4 and Section 3A of the Civil Procedure Act.
(Looks like a notice of motion).
The court looks at certain conditions before granting a stay of execution. The following conditions must
be satisfied before the court can grant a stay.

1. That the Application has been made without unreasonable delay.

2. That substantial loss will result to the Applicant unless such order is made.
3. Security for due performance of the decree has been given by the Applicant.

HOW THE COURT DEALS WITH THE APPEAL

Section 79 of the Civil Procedure Rules The court has power to summarily dismissed an Appeal. The
Court has the opportunity in the first instance to peruse the record of appeal and if they find there are no
sufficient ground for interfering with the decree, the court may reject the Appeal. If the court does not
reject the Appeal, then it proceeds to hearing. The fact that the court has admitted your appeal does not
mean you cannot get a default judgment so if you do not appear, the court can dismiss the Appeal for
default, it can also allow the Appeal for default. So just like a hearing, you are required to appear at the
hearing but unlike the High Court you do not have to appear for the Hearing in person. You may find that
in a case where the appellant does not wish to appear but would like the Appeal to proceed in that case
you will file a declaration in writing that you do not wish to be present in person or through an advocate.
In such a case you must then file two copies of your sole arguments which you desire to submit, once you
file the two copies one will be served on the respondent and the other is retained in the court file. The
option is also available to the Respondent, they can file their response in writing.

Suppose the Appellant appears and the Respondent does not appear, there will be an ex parte decision.
You can always apply to set aside an ex parte judgment but you must show sufficient cause for not
appearing.

PROCEDURE AT THE HEARING OF AN APPEAL

The procedure is that the Appellant has the right to begin. After hearing the Appellant in support of the
appeal, if the court finds that the Appeal has no substance it can dismiss the appeal without calling the
Respondent. Additional of parties or amendments can be done in the Court of Appeal as well.

POWERS OF THE APPELLATE COURT

Upon hearing the Appeal the Appellate Court may exercise the following powers:

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 1. It can opt to determine the case finally;
2. Remand the case;
3. Frame issues and refer them for retrial;
4. Take additional evidence or require such evidence to be taken;
5. Order a new trial;

The court will take various options depending on the grounds raised in the Appeal. The Appeal Court will
confine you to points.

1. To determine the case finally this power is exercised by the court where the evidence on the
record is sufficient to enable the Appellate Court to pronounce Judgment and to finally determine
the case and this is the most common option of the court of appeal. It is where from the record
they are able to understand the problem and determine the case. It is usually the case.

In certain cases the record of appeal may not be sufficient to enable the Court to pronounce Judgment or
to enable it finally determine the Appeal. In which case they will opt to remand the case.

Power to Remand the Case

The general rule is that the court should as far as possible dispose the case or an Appeal using the
Evidence on Record and should not be remanded for fresh evidence except in rare cases. Remanded
basically means to send back.

WHEN CAN THE COURT OF APPEAL REMAND A CASE?

1. Where the trial court disposed off the case on preliminary point without hearing and
recording evidence on other issues.
2. Where the Appellate Court disagrees with the trial court. In such a case the Appellate court
will set aside the judgment and decree of the trial court and remand the case to the trial court
for re-hearing and determination. The Appellate Court may also direct what issues shall be
tried in the case so remanded. Read Wambui Otieno Case by passing an order of
remand the Appellate Court directs the lower court to reopen and retry the case. On remand
the trial court will readmit the suit under its original number in the register of civil suits and
they will proceed to determine to hear it as per the directions of the court of appeal. The
court can only exercise the power to remand as set out by the Rules.

Suit disposed on a Preliminary Point

What is a preliminary Point? A point can be said to be preliminary if it is such that the decision thereon in
a particular way is sufficient to dispose of the whole suit without the necessity of a decision on the other
points of the case. A preliminary point may be one of fact or of law. But the decision thereon must have
avoided the necessity for a full hearing of the suit. For example

Preliminary Point of Law.

Suppose the issue of limitation of time or the doctrine of Res Judicata or the issue that the pleadings do
not disclose a course of action unraised at the trial court this is an example of a preliminary point of law.
Preliminary Point of Fact suppose a lower court dismisses the suit on the ground that the plaintiff is
estopped from proving their case because maybe there was a prior agreement relating to the facts, again

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the same rule will apply that as long as the decision was based on a preliminary point, then the Court of
Appeal will set aside that decision.
3. The Court has power to Frame issues and refer them for Trial

The Court of Appeal may order that certain issues be framed and that they be referred to the lower court
to be tried. The Court of Appeal will exercise this power where the trial court did not frame issues
properly or omitted to try a certain issue or omitted to determine a certain question of fact which is
essential to the right decision of the suit upon the merits. The court will frame those issues and then refer
them to the lower court for them to be tried. Normally it will refer them with certain directions. The court
of Appeal when they have all the issues on their bench can decide on the issues. The court of appeal
frames the issues sends them back to lower court and after they are dealt with they are sent back to the
court of Appeal.

4. Take additional evidence or require such evidence to be taken:

As we said at the beginning no additional evidence is taken at the court of Appeal unless
(i) The lower court refused evidence which ought to have been admitted;
(ii) Where the Court of Appeal needs certain documents or certain evidence to
enable it to pronounce judgment;
(iii) For any other substantial cause.

HOW DOES THE COURT OF APPEAL TAKE FRESH EVIDENCE

(a) The court of appeal may take the additional evidence itself;
(b) It may direct the original court to take the evidence;
(c) It may direct a lower court to take the evidence for it
Once the evidence is obtained, it is sent to the Court of Appeal and is used by the Court of Appeal to
make its decision

HOW IS FRESH EVIDENCE TAKEN

1. Where the lower court has improperly refused to admit evidence which it ought to have
admitted.
2. Where there is discovery of new evidence.

If it was not improper it cannot be used as a basis for the Court of Appeal to
Admit fresh evidence. The court of appeal may find out that there is certain evidence they need to come
to a final decision, they can ask for fresh evidence to be taken or they can take it themselves which is
rare.

3.ORDER A NEW TRIAL

The power to order a new trial is intertwined with the power of review.