CONTINOUS ASSESSMENT TEST

FOR GPR 208- CIVIL PROCEDURE

II

GROUP

MODULE 1 CLASS

GROUP MEMBERS
1.

JASPER

LUBETO

G34/2700/2011

2.

YOHANA GADAFFI

G34/2712/2011

3.

ZULFA

G34/2717/2011

4.

PAULINE NJOROGE

ADAN

G34/2812/2011
1

GENERAL PROVISIONS AS TO APPEALS

A Summary of the Civil Procedure Act
Appeals from original decrees of subordinate courts other than subordinate courts of the third
class shall lie to the High Court.1 An appeal shall lie to the High Court from a decree passed by a
subordinate court of the first class on an appeal from a subordinate court of the third class, on a
question of law only and such an appeal shall be final.2 When an appeal discloses no grounds for
interference, the High Court shall reject it summarily.
An appeal may lie from an original decree passed ex parte, but no appeal shall lie from a decree
passed by the court with the consent of the parties.3 Where a decree is appealed from, any error,
defect or irregularity in any order affecting the decision of the case may be set forth as a ground
of objection in the memorandum of appeal.4 Where a party aggrieved by a preliminary decree or
an order of remand from which an appeal lies does not appeal that decree or order, he shall be
precluded from disputing its correctness in any appeal which may be preferred from the final
decree.5
An appeal shall lie from the original decrees and orders of the High Court to the Court of
6

Appeal, apart from where there are express provisions to the contrary. A second appeal shall
only lie from the High Court to the Court of Appeal where specifically provided for by the Act
and upon furnishing of any security as may be prescribed,7 and only on a matter of law.
An appeal shall lie as of right from the following orders, and shall also lie from any other order
with the leave of the court making such order or of the court to which an appeal would lie if
leave were granted

Section 65 of the Civil Procedure Act.

Ibid. s71.
3
Ibid. s67.
4
Ibid. s76(1).
5
Ibid. s67(2) &76(2).
6
Ibid. s66.
7
Ibid. s72(1).
2

(a) An order superseding an arbitration where the award has not been completed within the
period allowed by the court.
(b) An order on an award stated in the form of a special case.
(c) An order modifying or correcting an award.
(d) An order staying or refusing to stay a suit where there is an agreement to refer to arbitration.
(e) An order filing or refusing to file an award in an arbitration without the intervention of the
court
(f) An order under section 64.8
(g) An order under any of the provisions of this Act imposing a fine or directing the arrest or
detention in prison of any person except where the arrest or detention is in execution of a decree.
(h) Any order made under rules from which an appeal is expressly allowed by rules.
Any order passed in an appeal under the foregoing provisions shall be final.9
Powers of the Appellate Court
The appellate court has powers to: determine a case, remand a case, frame issues and refer them
for trial, take additional evidence or require that evidence be taken and order a new trial. 10 No
decree shall be reversed or varied on account of any misjoinder of parties or causes of action or
any defect not affecting the merits or jurisdiction of the case. 11 No second appeal from a decree
passed in an appeal by the High Court shall be entertained except on the grounds stated in
section 72.12In addition, no second appeal shall be entertained from a decree passed in an appeal
by the High Court in a suit when the amount or value of the subject matter of the original suit

Compensation for arrest, attachment or injunction on insufficient grounds.

Ibid. s75.
10
Ibid. s78, Civil Procedure Rules, Order 42 r 24, 25 and 26.
11
Ibid. s79A.
12
Ibid. s79D. Decision being contrary to law, decision having failed to determine some material issue of law and a
substantial defect in the procedure as provided by law.
9

does not exceed ten thousand shillings unless special leave is obtained from the court in which
the appeal is to be heard.13
Pauper appeals to the High Court or the Court of Appeal are not allowed, except with leave of
the trial court or the appellate court.14
Appeals from a subordinate court shall be filed within thirty days from the date of decree or
order appealed against excluding the period the lower court may certify as necessary for
preparation and delivery to the appellant of copies of the order or decree. However, an appeal
may be admitted out of time if the appellant satisfies the court that he had sufficient cause for not
filing in time.

APPELLATE PROCEDURE IN THE HIGH COURT

Introduction
There is no statute in Kenyan Law that specifically provides for the procedure to be followed by
the High Court in exercise of its appellate jurisdiction. The Civil Procedure Rules 2010 at Order
42 have provisions that deal with appeals generally. It is from these rules that we can draw those
applicable in the High court.
A Summary of Order 42 of the Civil Procedure Rules 2010
Every appeal to the High Court shall be in a memorandum of appeal signed in the same manner
as a pleading.15 It shall contain under distinct heads the grounds of objection to the decree or
order appealed against, without any arguments or narrative and such grounds shall be numbered
consecutively.16

13

Ibid. s79E.
Ibid. s79F.
15
Order 42, r1 (1), Civil Procedure Rules.
16
Ibid. r1(2).
14

The memorandum of appeal may be amended without leave any time before the court gives
directions where the matter has been listed for directions. Where such directions have already
been given, leave of court shall be required.17
Where no certified copy of the decree or order appealed against is filed with the memorandum
of appeal, the appellant shall file it as soon as possible, or within such time as the court may
order and before this is done, such appeal shall not be considered for summary rejection.18
The appellant shall not, without leave of the court, be heard on any ground of objection not
included in their memorandum of appeal. However, the High Court may in reaching its decision
consider matters other than those in the memorandum of appeal or submitted with leave of court,
provided that any party who may be affected by the decision will have had an opportunity to be
heard on that matter as well. 19
Where there is more than one plaintiff or defendant in a suit, and their appeal proceeds from any
ground(s) common to all of them, any one of the plaintiffs or of the defendants may appeal from
the whole decree, and the High Court may reverse or vary the decree in favour of all the
plaintiffs or defendants.20
An appeal shall not operate as a stay of execution or proceedings unless a court orders so. Any
person aggrieved by an order for stay by the trial court may apply to the appellate court to set
aside such order.21
An order for stay of execution shall not be made unless the court is satisfied that the applicant
may suffer substantial loss if the order is not made, that he has given such security as the court
may have ordered for the due performance of such decree or order as may ultimately become
binding on him22 and that the application has been made without unreasonable delay. The court
is also empowered to order upon such terms as it may deem fit a stay of execution pending the

17

Ibid. r3(2); Civil Procedure Act, s 79B.

Ibid. r2.
19
Ibid. r4.
20
Ibid. r5.
21
Ibid. r6 (1).
22
Ibid. r6 (2).
18

hearing of a formal application.23An application for stay of proceedings may be made

immediately after delivery of judgment.24
Where an order is made for the execution of a decree from which an appeal is pending, the trial
court or the appellate court may require security to be taken for the restitution of any property
which may have been taken in execution of the decree or for the payment of the value of such
property and for the due performance of the decree or order of the relevant court.25 Where an
order has been made for the sale of immovable property in execution of a decree and an appeal is
pending from such decree, the sale shall, on the application of the judgment-debtor to the court
which made the order, or to any court to which such appeal or second appeal shall have been
made, be stayed on such terms as to giving security or otherwise as the court thinks fit until the
appeal is disposed of.26Such security shall not be required from the Government.
The Register and filing of appeals
Memorandum of appeals shall be filed at the registry together with any fee payable, and each
memorandum shall be date-stamped with the date of filing.27Thereafter, the appellant shall
within thirty days cause the matter to be listed before a judge for directions.28
Service of memorandum of appeal
If an appeal is not rejected summarily,29 the registrar shall notify the appellant who shall serve
the memorandum of appeal on every respondent within seven days of receipt of the notice from
the registrar.30
Directions before hearing
The appellant shall cause the appeal to be listed for the giving of directions by a judge in
chambers, on notice to the parties delivered not less than twenty-one days after the date of
23

Ibid. r6 (3).
Ibid. r6 (5).
25
Ibid. r7 (1).
26
Ibid. r7 (2).
27
Ibid. r10(2).
24

28

Ibid. r11.

29

Civil Procedure Act s.79B.

Ibid. r12.

30

service of the memorandum of appeal.31 Objection to the jurisdiction of the appellate court shall
be raised before the judge gives directions.32 The judge shall be satisfied that the following
documents are on the court record33:
a. The memorandum of appeal.
b. The pleadings.
c. The notes of the trial magistrate made at the hearing.
d. The transcript of any official shorthand, typist notes electronic recording or palantypist
notes made at the hearing.
e. All affidavits, maps and other documents whatsoever put in evidence before the
Magistrate.
f. The judgment, order or decree appealed from, and, where appropriate, the order (if any)
giving leave to appeal.
Apart from those documents specified in (a), (b) and (f), the judge may dispense with the
production of any other document that may not be relevant. A translation into English shall be
provided of any document not in English.
Security for costs
The court may order the appellant to give security for costs of the appeal34 where the appellant is
not ordinarily resident in Kenya and lacks sufficient property in Kenya.35 Such security must be
given within a time prescribed by the court. Failure to furnish the security makes the appeal
liable for dismissal by the court.36

31

Ibid. r13 (1).

32

Ibid. r13 (2).

33

Ibid. r13(4).

34

Ibid. r14(1).

35

Ibid. r14(2).

36

Ibid. r14(3).

Service of hearing notice

Notice of the day fixed for hearing of the appeal shall be served on the respondent or on his
advocate.37 The notice shall declare that should the respondent fail to appear on the fixed date,
the appeal shall be heard ex parte.38
Right to begin
The appellant, being the one who alleges has the right to begin.39 If the action is not dismissed at
that point, the respondent is then heard against the appeal, in which case the appellant shall have
a right to reply to the respondents submissions.40
Filing declaration and written submissions
Any party may file a declaration in writing, indicating his unwillingness to appear in person or
by advocate, and lodge written submissions of the arguments in support of or in opposition to the
appeal and within seven days after lodging the submission serve a copy on the other party (ies).41
Such a party may with leave of the court address the court at the hearing of the appeal.42
Consequence for non-appearance
An appeal may be dismissed if an appellant who has not filed written submissions fails to
appear.43 However, such an appeal may be re-admitted upon application for re-admission by the
appellant, if they show that they were prevented by sufficient cause from appearing. 44 If a
respondent who has not filed written submissions in accordance with rule 16(3) fails to appear,
the matter may proceed ex parte.45 Where after an ex parte hearing judgement is entered against
37

Ibid. r17, in the manner provided for at Order 5 of the Civil Procedure Rules,2010 on service of summons

38

Ibid. r18.

39

Ibid. r19 (1).

Ibid. r19(2).
41
Ibid. r16(1).
40

42

Ibid. r16(2).

43

Ibid. r20(1).
Ibid. r21.
45
Ibid. r20(2).
44

the respondent, he may apply to the court to re-hear the matter. This will be done if he satisfies
the court that he was prevented by sufficient cause from appearing.46 In the case of re-admission
for the appellant or re-hearing for the respondent, the court shall do so on such terms as to cost as
it thinks fit.
The court may adjourn to afford time for any person who was a party to the proceedings in the
trial court, and who is interested in the outcome of the appeal but has not been made a party to it,
to be enjoined as a respondent in the appeal.47
Admission of evidence
The parties shall not be entitled to produce additional evidence save for cases where the trial
court had failed to admit evidence which it ought to have admitted or where the appellate court
requires such additional evidence to enable it to pronounce judgement or for other substantial
cause.48The court shall record the reason for such admission.49 The appellate court may take the
evidence itself or it may direct the trial court to take it and thereafter send it to the appellate
court. In this event, the appellate court shall specify the limits within which it shall be taken.
A copy of the judgment and the decree shall be sent to the court which passed the decree
appealed from and shall be filed with the original proceedings of the suit.50 Such judgment or
decree must be certified by the High Court or such officer as the court appoints to certify on its
behalf.51
A decree of the court to which the appeal is preferred shall be dated, drawn up, sealed and
signed.52
Abatement of appeal
Within three months after the giving of directions, the appellant must set down the appeal for
hearing failure to which the respondent may set down the appeal for hearing or apply for
46

Ibid. r23.
Ibid. r22.
48
Ibid. r27(1).
49
Ibid. r27(2).
50
Order 42 rule 34.
51
Ibid.
52
Ibid. r33.
47

10

summons for its dismissal for want of prosecution.53 If within one year after the service of the
memorandum of appeal, the appeal shall not have been set down for hearing, the Registrar shall
on notice to the parties list the appeal before a judge in chambers for dismissal.54

THE APELLATE PROCEDURE IN THE COURT OF APPEAL

Introduction
The Court of Appeal has jurisdiction to hear and determine appeals from the High Court in cases
in which an appeal lies to the court of appeal under any law.55 In addition to the powers
bestowed upon the court by the Appellate Jurisdiction Act, the Court of Appeal equally has the
power, authority and jurisdiction vested in the High Court. Section 3(3) provides that the law to
be applied by the Court of Appeal in the exercise of the jurisdiction conferred upon it by the Act
shall be the law applicable to the case in the High Court. In discharging its function, the Court of
Appeal as well as officers of the court such as advocates should always seek to attain the
overriding objective as set out in Sections 3A and 3B of the Act.56
Section 5 of the Act empowers the Rules Committee to make rules of court for regulating the
practice and procedure of the Court of Appeal with respect to appeals, and in connection with
such appeal, regulating the practice and procedure of the High Court. Pursuant to this provision,
the Rules Committee formulated the Court of Appeal Rules 2010 which among other functions
seek to:
a. Regulate the sittings of the court.
b. Regulate the right of practising before the court and representation of persons concerned
in any proceedings in the court.
c. Provide for summary determination of any appeal which appears to the court to be
frivolous or vexatious.
53

Ibid. r35(1).
Ibid. r35(2).
55
s 3(1) of the Appellate Jurisdiction Act.
56
s 3A and 3B of the Act provide that the principle aim of the Act as well as well the rules is to facilitate the just,
expeditious, proportionate and affordable resolution of appeals governed by the Act.
54

11

d. Prescribe the time within which any requirement of the rules is to be complied with.
e. Fix the number of judges who may sit for any purpose.
Application for leave to appeal
Appeals to the Court of Appeal do not always lie as a matter of right. One may have to obtain
leave of court to institute an appeal to the Court of Appeal. Such should be applied for within
fourteen days of giving of judgement. Leave to appeal may lie with the Superior Court or the
Court of Appeal, depending on the nature of the case. With the Superior Court,57 an application
for leave may be made informally at the time when the decision against which an appeal is
preferred is given or by motion or chamber summons within fourteen days of the decision.58
With the Court of Appeal, application shall be by motion, made within fourteen days as well, and
shall be supported by one or more affidavits of the applicant, or any other person familiar with
the facts of the case. It must state the grounds for the application.59 Where no appeal lies unless
the superior court certifies that a point of law of general public importance is involved,
application for such a certificate may be made informally, at the time when the decision against
which it is desired to appeal is given,60 or by motion or chamber summons according to the
practice of the superior court, within fourteen days of that decision.61
Summary of the Court of appeal rules
The Civil Appeal rules apply only to superior courts acting in original and appellate
jurisdiction.62
Notice of appeal
A notice of appeal shall be lodged in duplicate with the registrar of the superior court within 14
days of the date of the decision which is appealed against. The notice shall state whether the
appeal is for the whole decision or if it is a partial appeal, in which case it will specify the parts
appealed against.

57

Superior Court as used in this presentation refers to the High Court.

Court of Appeal Rules 2010 r39(a).
59
Ibid. r39(b).
60
Ibid. r40(a).
61
Ibid. r40(b).
62
Ibid. r74.
58

12

An appellant can lodge a notice of appeal before they apply for leave and even before they
extract the decree or order appealed against.63
On receipt of a notice of appeal the registrar of the superior court shall send one copy to the
appropriate registry.64An appellant shall within seven days after lodging a notice of appeal serve
copies on all persons directly affected by the appeal. The addresses for service given in the
proceedings in the superior court shall be used for purposes of serving the notice of appeal where
no new addresses for service have been provided.65 If a person required to be served dies before
service, their legal representative shall be served instead.66 The lodging of an address for service
shall not be construed to mean that the appeal is competent or as a waiver of any irregularities.
Where two or more parties have given notice of appeal from the same decision, the second and
all subsequent notices to be lodged shall be deemed to be notices of address for service within
the meaning of rule 79 and the party or parties giving those notices shall be respondents in the
appeal.67
Application to strike out notice of appeal or appeal
A person affected by an appeal may apply to the Court to strike out the notice of appeal or the
appeal, on the ground that no appeal lies or that some essential step in the proceedings has not
been taken, or had not been taken within the prescribed time. Such application must be made
within 30 days from the date of service of the record of appeal.68
Institution of appeals
An appeal shall be instituted within sixty days of lodging a notice of appeal by lodging in the
appropriate registry;
a. A memorandum of appeal, in quadruplicate.
b. The record of appeal, in quadruplicate.
c. The prescribed fee.
63

Ibid. r75.
Ibid. r76.
65
Ibid. r77.
66
Ibid. r78.
67
Ibid r80, giving of a notice of address of service by respondent.
68
Ibid r84.
64

13

d. Security for the costs of the appeal.

Time required for preparation and delivery of the copy of the proceedings from the Superior
Court shall not be included in computation of time limits for the appeals, if the application was
made in writing and a copy of it sent to the appellant.69 Failure to institute the appeal within sixty
days will be construed as a withdrawal of the appeal, and the appellant may be liable to pay costs
to those served with a notice of appeal.70

Contents of the memorandum and record of appeal

A memorandum of appeal shall precisely set forth under distinct heads, the grounds of objection
to the decision appealed against, specifying the points which are alleged to have been wrongly
decided, and the nature of the order sought. These grounds shall be numbered consecutively.71
The record of appeal shall contain certified copies of the following:72
a. An index of all the documents in the record with the numbers of the pages at which they
appear.
b. The address for service of the appellant and the address for service furnished by the
respondent and, for any respondent who has not furnished an address for service, his last
known address and proof of service on him of the notice of appeal.
c. The pleadings.
d. The trial judges notes of the hearing.
e. The transcript of any shorthand notes taken at the trial.
f. The affidavits read and all documents put in evidence at the hearing and certified
translations of those not in English.
g. The judgment or order.
h. The certified copy of the decree or order.
i. The order, if any, giving leave to appeal.
69

Ibid r82(2).
Ibid r83.
71
Ibid r86.
72
Ibid r87(1).
70

14

j. The notice of appeal.

k. Any other documents that may be necessary for the proper determination of the appeal,
including any relevant interlocutory proceedings.
In appeals from a superior court in its appellate jurisdiction, the record of appeal shall
contain the documents listed above from the trial court, and in addition shall have the
following relating to the first appeal,:73
a. The order, if any, giving leave to appeal.
b. The memorandum of appeal.
c. The record of proceedings.
d. The judgment or order.
e. The decree or order.
f. The notice of appeal.
In addition, the rules provide that the memorandum of appeal together with the record of
appeal shall be bound in book form, may be in more than one volume with the title of the
appeal appearing on the cover. The pages of the memorandum and record of appeal shall be
numbered consecutively. Every tenth line of each page of the record shall be numbered with
such numbering being indicated on the right side margin.74 Abiding by these requirements is
critical as the Registrar is empowered to reject any documents which do not comply with the
above requirements. 75
Service of memorandum of appeal and record of appeal
The appellant shall within seven days after lodging the memorandum of appeal and the record of
appeal, serve copies on each respondent and also serve copies of the same on parties to the
original proceedings as the Court may direct on application or of its own motion.76 Pursuant to
Rule 17, in the absence of any special direction of the court, service shall be made personally on
the person to be served or any other person entitled by the rules to appear on his behalf or by any
other recognized mode of service as provided under the Civil Procedure Rules 2010.
73

Ibid. r87(2).

74

Ibid. r13.
Ibid. r14.
76
Ibid. r90.
75

15

Amendment of a memorandum of appeal

Rule 16 read with rule 44 provides general provisions as to amendment of documents. The same
are applicable to a memorandum of appeal. A person may amend the document itself or where it
is more convenient, an amended version of the document may be lodged.77 An application to
amend may be made formally, in which case the amendment for which leave is sought shall be in
writing and should be lodged with the registrar and served upon the respondent before hearing
starts, or during the hearing.78 Such application may be made informally as well. If leave is
granted, the amended document must be lodged with the court within 48 hours, or such time as
the court allows. If not complied with, the leave shall determine.79
Any words or figures deleted from the original document shall be indicated by striking them
through with red ink. Similarly, any words or figures to the original shall be indicated by writing
them in red ink or underlining them in red ink.80 It is mandatory that the amendments be shown
in each copy of the record of appeal where any record of appeal includes any amended
document.81
Preparation and service of supplementary appeal
A respondent who finds a record of appeal insufficient or defective, may file a supplementary
record of appeal containing further documents that may be necessary for the determination of the
appeal.82 An appellant is also empowered to lodge a supplementary record of appeal at any
time.83 Such record must be served as soon as possible on all the parties who have filed an
address for service.84

77

Ibid. r16(1)
Ibid. r44(1)
79
Ibid. r44(2)
80
Ibid. r16(2)
81
Ibid. r16(3)
82
Ibid. r92(1).
83
Ibid. r92(3).
84
Ibid. r92(2).
78

16

Cross-appeals
A respondent who intends to contend at the hearing of an appeal that the decision of the superior
court should be varied or reversed is required to give notice to that effect specifying the grounds
of his contention. Such a notice is known as a notice of cross appeal and further states the orders
sought by the respondent.85 The notice of cross-appeal states the names and addresses of all the
parties to be served with copies and lodged in quadruplicate. It should be filed within 30 days of
service of the memorandum of appeal and record of appeal on the respondent or not less than 30
days before the hearing of the appeal, whichever is later.86 The notice shall be as prescribed in
Form G of the first schedule.87
Notice of grounds for affirmation
Where a respondent intends to contend at the hearing of an appeal that a decision of the superior
court should be affirmed on grounds different or additional to those relied on by the court, he is
required to give notice of such grounds.88 The notice is known as notice of grounds for
affirmation and should be in the form prescribed under the rules.89 It may be included in the
notice for cross-appeal where both are lodged.90 A party lodging a notice of cross-appeal or a
notice of grounds for affirmation must serve a copy on the appellant and copies on all other
persons directly affected by the appeal within seven days of being lodged.91
Withdrawal of appeal
An appellant may at any time before an appeal is called for hearing lodge a written notice of
withdrawal at the appropriate registry.92 Such notice must be served on all respondents who filed
notice of address of service within seven days of being lodged.93 If all the parties to the appeal
consent to the withdrawal of the appeal the appellant shall file a consent letter signed by the

85

Ibid. r93(1).
Ibid. r93(2).
87
Ibid. r93(3).
88
Ibid. r94(1).
89
Ibid. r94(3).
90
Ibid. r94(4).
91
Ibid. r95(1).
92
Ibid. r96(1).
93
Ibid. r96(2).
86

17

parties or their advocates and the appeal shall be struck out of the list of pending appeals.94 If all
the parties to the appeal do not consent to withdrawal of the appeal, the appellant may before the
conclusion of its hearing apply for leave to withdraw the appeal.95 Such application for the
withdrawal of the appeal may be made informally where hearing has commenced.96
Where an appeal is withdrawn after a notice of cross-appeal has been given, the respondent who
gave the notice may withdraw it within fourteen days of the notice of withdrawal of appeal being
served on him. Where a notice of cross-appeal is not withdrawn the cross-appeal shall proceed to
hearing, in which case the respondent will be the appellant and vice versa.97
If an appeal is withdrawn within fourteen days of the date when it was instituted, any respondent
who has not lodged a cross-appeal shall be entitled to give notice of appeal notwithstanding that
the time limit has expired if he does so within fourteen days of the date when the appellant's
notice of withdrawal was served on him.98
A respondent may withdraw a notice of cross-appeal or grounds for affirmation of decision by
lodging notice in writing to that effect.99 Such a notice of withdrawal shall be served on the
appellant and all other parties who were served with the notice of cross-appeal or grounds for
affirming decision.100
Death of a party
An appeal shall not abate on the death of either the appellant or the respondent but the court shall
cause on application, the legal representative of a deceased to be made a party in place of the
deceased.101 The appeal shall however abate if no application is made within twelve months from
the date of death of the deceased party.102
The legal representative of a deceased party to an appeal may apply for an order to revive an
appeal which has abated; and, if it is proved that he was prevented by sufficient cause from
94

Ibid. r96(3).
Ibid. r96(4).
96
Ibid. r96(5).
97
Ibid. r97(1).
98
Ibid. r97(2).
99
Ibid. r98(1).
100
Ibid. r98(2).
101
Ibid. r99(1).
102
Ibid. r99(2).
95

18

continuing the appeal, the court shall revive the appeal upon such terms as to costs or otherwise
as it deems fit.103
Any party to an appeal who does not wish to appear in person or by advocate at the hearing of
the appeal may lodge written submissions of arguments in support or opposition of the appeal,
and shall serve copies of it within seven days on each of the other parties appearing. 104 These
submissions should be filed within fourteen days of lodging of the memorandum of appeal by the
appellant; and within thirty days of being served with the memorandum and record of appeal by
the respondent. A party who complies with these will be deemed to have made appearance.
Consequences for non-appearance
Where the appellant fails to appear on the date fixed for hearing the appeal may be dismissed and
any cross appeal may proceed unless the Court sees it fit to adjourn the hearing. 105An appellant
may however successfully apply for the restoration of the appeal if he shows he was prevented
by sufficient cause from appearing when the appeal was called on hearing.
Where a respondent fails to appear at the hearing the appeal may proceed ex-parte and any crossappeal dismissed, unless the court sees it fit to adjourn the hearing.106 A respondent may
successfully apply to the court to re-hear an appeal that was heard in his absence and restore any
cross-appeal dismissed if he shows that he was prevented by sufficient cause from appearing.
An application to restore an appeal or cross-appeal or to re-hear an appeal or cross-appeal is to
be made within thirty days after the Courts decision.107
The court is empowered to order that two or more appeals be consolidated, or may order them to
be heard at the same time or one immediately after the other, or may order them to be stayed
until the determination of any other of them.108

103

Ibid. r99(3).
Ibid. r100(1).
105
Ibid r 102(2)
106
Ibid r102(2)
107
Ibid r 102(3)
108
Ibid r 103
104

19

Hearing
At the hearing of an appeal no party shall without leave of the court, argue that the decision of a
superior court should be reversed or varied on grounds other than those stated in the
memorandum of appeal or in a notice of cross-appeal. A party is also not allowed to support the
decision of a superior court on grounds other than those relied on by that court unless notice of
such grounds was duly filed.109 The court shall only allow such where every person who should
be a respondent on that ground has had an opportunity to be heard.
Except with leave of court, no objection to an appeal shall be raised at the hearing on the grounds
that no appeal lies or that some essential step in the proceedings has not been taken or has not
been taken within the prescribed time

Differences between the appellate procedure in the High Court and in the Court of Appeal
Notice of appeal
In the Court of Appeal, an appellant must lodge a notice of appeal in duplicate with the registrar
of the Superior Court.110 Such notice informs the court of the appellants intention to appeal
against the courts decision. On the other hand, in the High Court, there is no requirement for one
to lodge a notice of appeal. Instead, it is the High Court, upon a memorandum of appeal being
lodged that notifies the court from whose decree the appeal is preferred of the impending
appeal.111Upon receipt of such notice, the receiving court shall dispatch all material papers in the
suit or such papers as may be specially called for by the appellate court.
Cross appeals and grounds for affirmation
The Court of Appeal Rules allow a respondent to file a cross appeal where the respondent wishes
to contend at the hearing that the decision appealed against should be varied or reversed. The
respondent shall give grounds for their contention in their notice for cross appeal. 112 In a hearing
for a cross appeal, the respondent shall be the appellant and the appellant shall be the respondent.
109

Ibid r 104(a)
Court of Appeal Rules r75(1).
111
Civil Procedure Rules 2010, Order 42 r15(1).
112
Court of Appeal Rules r93(1).
110

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If an appellant withdraws his appeal where a cross appeal had been filed, hearing for the cross
appeal shall continue, unless it is also withdrawn.113
The Rules also allow the respondent to file Grounds for affirmation. This applies where a
respondent wishes to contend in trial that the decree appealed against should be affirmed rather
than varied or reversed. They should base their arguments on grounds relied upon by the superior
court in reaching its decision.114
In each case, the respondent is required to serve the notice of cross appeal or the notice of
grounds for affirmation on the appellant and any other party who may be affected by the
application and result of that cross appeal.115
The rules applicable to the High Court do not provide for the filing either of them.
Appeals from Kadhis Courts
Appeals lie to the High Court from decrees or parts of decrees of Kadhis Courts, and on such an
appeal, the Chief Kadhi or two other Kadhis shall sit as assessor or assessors.116In an appeal to
the Court of Appeal, the Chief Kadhi or the Kadhis do not sit as assessors. The matter is handled
exclusively by the Court of Appeal judges.
Timelines
In the High Court, once a memorandum of appeal is lodged, the appeal should be instituted
within thirty days.117 In the Court of Appeal, upon lodging of a memorandum of appeal, the
appeal should be instituted within sixty days.118
Form and contents of the memorandum and record of appeal
The Court of Appeal has very specific instructions as to the form of the record of appeal when
lodging an appeal. The rules provide that the memorandum of appeal together with the record of
appeal shall be bound in book form, may be in more than one volume with the title of the appeal
113

Ibid. r97(1).
Ibid. r94(1).
115
Ibid. r95(1).
116
Civil Procedure Act s65(1)(c)
117
Civil Procedure Rules, Order 42 r13(1).
118
Civil Procedure Act s79G
114

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appearing on the cover. The pages of the memorandum and record of appeal shall be numbered
consecutively. The numbering of every tenth line of each page of the record with such
numbering being indicated on the right side margin of the sheet is also required.

119

The above

specifications are not expressly stated as part of the High Courts rules although in practice,
applications may take a similar form.
The contents of a record of appeal in the Court of Appeal should contain an index of all the
documents in the record, a notice of appeal and the order, if any giving leave to appeal. All these
are not required to appear in a record of appeal in the High Court.
Amendment of memorandum of appeal
In the High Court, an appellant may amend his memorandum of appeal without leave at any time
before the Court gives directions. After directions have been given, leave of court must be sought
if any amendments are to be made.120
Any amendment in the Court of Appeal shall be made after leave of court has been granted.
Application for leave to amend may be made formally or informally. A formal application to
amend must be in writing and should be served on the respondent before hearing of the
application.121
Number of judges at hearing
Section 79C of the Civil Procedure Act provides that an appeal from a subordinate court to the
High Court shall be heard by one judge except when the Chief Justice directs otherwise. A
matter in the Court of Appeal shall be heard by an uneven number of judges. For the final
determination of a matter, there shall not sit less than three judges. This position in the Court of
Appeal is provided by the Appellate Jurisdiction Act at section 5(3) (i).

119

Ibid. r13.
Civil Procedure Rules, Order 42 r3(1) &(2).
121
Court of Appeal Rules r44.
120

22

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NUMBER 2120 OF 2013
PAULINE NJOROGE********************************************PLAINTIFF
VERSUS
KYALO ENTERPRISES LIMITED ***************************1st DEFENDANT
ODHIAMBO LUBETO *************************************** 2nd DEFENDANT
NOTICE OF APPEAL
TAKE NOTICE that PAULINE NJOROGE being dissatisfied with the decision of the

Honourable Lady Justice ROBLE ADAM given at Nairobi on the 25th day of July 2013 intends
to Appeal to the Court of Appeal against the whole of the said decision.
The address for service of the Appellant is C/o Oketch & Co Advocates, Queensway House,
4th Floor, Kaunda Street, P. O. Box 34567-00200, Nairobi.
It is intended to serve copies of this Notice on KYALO ENTERPRISES LIMITED and
ODHIAMBO LUBETO
DATED at NAIROBI this Day of..2013

..
OKETCH & CO
ADVOCATES FOR THE APPELLANT.

TO:THE REGISTRAR OF THE

HIGH COURT OF KENYA AT
NAIROBI

in the High
of..2013
LODGED

Court

of

Kenya

at

Nairobi

this..day

REGISTRAR
23

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