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B R N 13 CIVIL LITIGATION 1 — Transcript

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0:02But, um
0:06we are
0:09together. So, guys, can somebody
0:11uh give us a
0:13or ask a question at least to start us
0:15off?
0:18Uh can somebody
0:22get us a question so that we can start?
0:27And did we try the assignment? I only
0:30saw a few
0:33a few people
0:35uh from the previous class
0:40uh that sent me their work. So, I'm
0:42hoping that majority of you did not try.
0:46So,
0:49I don't know whether that is the case,
0:51but if it is the case, guys,
0:54I will want us to take the assignment
0:56seriously.
1:00I want us to take the assignment
1:01seriously.
1:10All right.
1:15Do you have questions? And how many
1:17people tried the assignment?
1:27Everybody tried the assignment.
1:45All right. So, a few people tried.
1:48I know some of you sent it to me. I will
1:51review and get back to
1:53uh get back to you as well in that.
1:57I will review and uh get back to you
2:01um
2:03with that.
2:04All right. So, so I want us to start the
2:06class today. And the class today we're
2:08going to the last remedy against
2:09judgment and decree and the last
2:12judgment against uh judgment and and
2:15decree.
2:17Are we together? Uh that is what I want
2:20us to go straight into.
2:22Uh I want us to go straight into that
2:25uh because we have discussed all the
2:27other remedies. Uh we have looked at all
2:30the other uh remedies.
2:32And uh we say that we have stay of
2:35execution, payment in installments,
2:37objective proceedings, and we talked
2:39about uh review in the last
2:42Sorry, the last class and then today
2:46I want us to talk about
2:48uh appeals.
2:51So,
2:53is there any question
3:00on the previous ones?
3:15All right.
3:17Uh looks like uh
3:19there are no questions. Guys, is it that
3:21you don't have questions generally or
3:23you just like being silent?
3:25Which one is which?
3:38Hm?
3:45Where?
3:48Can somebody hear me?
3:50This class is a funny class.
4:03Can I be heard? Yes, Hussein.
4:07Yes, I can hear you.
4:16Okay.
4:24All right, then.
4:26I think uh
4:29if that is the question is that the
4:31if that is the position
4:34uh then uh I think we can just proceed.
4:38I think we can just proceed if everybody
4:40is okay. Now, today we talk about
4:42appeals and appeals are very interesting
4:45uh set of um
4:47uh information. Appeals are very
4:49interesting
4:51and uh it's because they're very direct
4:53and this is the last
4:55uh remedy against judgment uh the last
4:59remedy against judgment
5:01and um
5:03when we talked about uh pleadings,
5:06uh remember that uh we spoke about
5:07pleadings
5:08and we said that we have a third
5:12uh type of pleading which we were
5:15calling the appellate
5:17uh the appellate pleading.
5:18We are calling that the appellate
5:20pleadings. So, these are pleadings that
5:23uh done in response to
5:27uh in response to
5:29a judgment or a decree. It is done in
5:32response
5:33uh to a judgment or a decree.
5:37Are you Are we together?
5:43Yes, we are.
5:52All right.
5:54I'm trying to bring up my screen.
6:01Yes, 1 second.
6:06Uh right there.
6:12My screen should be up.
6:22Can you see it?
6:26Yes.
6:27Yes.
6:42All right.
6:44Now,
6:45let us start. Uh let us start on order
6:4642 rule one.
6:49Order 42 rule one, somebody take us
6:50through order 42 uh rule one.
6:54That is where I want us to all begin.
6:57Okay? Order 42 rule number one.
7:01Uh-huh, somebody that is reading, please
7:03read.
7:06The 42 rule one, form of appeal.
7:09Sub rule one, every appeal to the High
7:11Court shall be in the form of a
7:13memorandum of appeal signed in the name
7:16in the same manner as a pleading. Two,
7:19the memorandum of appeal shall set forth
7:21concisely and under distinct heads the
7:25grounds of objection to the decree or
7:27order appealed against without any
7:29argument or narrative and such grounds
7:32shall be numbered consecutively.
7:36All right. That is beautiful.
7:38Now, I'm just introducing that so that
7:40we can go back and pick from where I
7:42want us to pick from. So, we talked
7:44about the appellate pleadings and we
7:46said, "Guys, moving forward, I want us
7:48to join the class very early."
7:51Moving forward, I want us to join the
7:52class very early so that by the time
7:54it's time, I usually give us
7:56around 15 minutes or 10
7:59so that guys can enjoy in the class.
8:00But, if you're joining the class right
8:02now,
8:03uh
8:05it's not a good thing to do
8:07because you are distracting the movement
8:09of class.
8:11So,
8:12from tomorrow, please, can we make sure
8:15that you join the class very early?
8:18And that will be very fine.
8:22All right. So,
8:23we talked about the appellate pleadings.
8:25Uh we talked about the appellate
8:26pleadings and we say that the last
8:27pleading that we are going to be
8:28drafting uh is a memorandum of appeal.
8:32The last pleading that we are going to
8:33be drafting is a memorandum of appeal.
8:36Now, a memorandum of appeal is also a
8:39pleading. It is prepared in form of
8:41appeal. But, leave alone that. Put an
8:43appeal there. Let's come back and talk
8:45about appeals. Now, what is an appeal?
8:48What is an appeal? Now, there are a few
8:50things you need to understand when
8:52somebody mentions an appeal. The very
8:55first thing that you must understand is
8:57generally the right of appeal.
9:00Okay? Now, the right of appeal is
9:01provided for under order 43. And we're
9:04saying that at any time where a
9:06judgment, a ruling, an order, or a
9:08decree has been delivered, the party
9:11that is aggrieved or the party that is
9:13not impressed by that order will
9:16definitely have a right to proceed to
9:19the
9:20to the appellate court for purposes of
9:22reviewing So, not reviewing really, but
9:25challenging that specific decision. So,
9:27you can appeal that decision to a higher
9:29court. Okay? That is where you start
9:32from. So, an appeal usually goes to the
9:35uh goes to the higher court.
9:37I hope that is making sense. Now, that
9:39is where we start from. So, we are
9:40starting from the point where we're
9:42saying there is a judgment or there's a
9:44decree or an order or even a ruling that
9:46you are not happy with and for that
9:49reason you are moving straight to the
9:51appellate court for purposes of
9:54challenging that decision. That is the
9:56first thing. The next thing, you need to
9:57understand
9:59is that the appellate court is not the
10:02court of appeal.
10:03The appellate court is any court that
10:06has the appellate jurisdiction.
10:09Any court that has the appellate
10:10jurisdiction is an appellate court. Any
10:13court that has the appellate
10:15jurisdiction is an appellate an
10:17appellate court. So, that is the High
10:19Court, that is the Court of Appeal, and
10:21that is the Supreme Court. All those are
10:23appellate courts. Any court that has the
10:25appellate jurisdiction.
10:28Number three, you must understand that
10:30not all orders are appealable.
10:33Not all orders are appealable. Even
10:35though there is the right or every
10:37person will have the right to go and
10:39challenge
10:40uh the
10:42order, ruling, or decree, not every
10:44person will have that right. Not every
10:47person is granted that right. And if you
10:49go to order 43, just down there,
10:53let me just scroll down there.
10:56Now, order 43 creates two things. The
10:58first one are orders that are appealable
11:01as of right. What is that supposed to
11:03mean? It means these are orders that you
11:07can appeal without seeking leave of
11:09court as a matter of right. It means
11:11once an order has been made under the
11:13specific orders listed under order 43,
11:16then you have the right to go to the
11:18appellate court to challenge that
11:20decision. Are we together? So, that is
11:23the first one. The second one are orders
11:26that are not appealable as of right. It
11:29means you cannot appeal them as of
11:32right. It means if a court makes a
11:33decision subject to that order, you will
11:36not proceed
11:38and
11:39appeal
11:40without first seeking leave of court.
11:42So, ordinarily, you are not allowed to
11:44appeal
11:45unless now you seek the leave of court
11:49to appeal. Unless you seek the leave of
11:52court to do what? To appeal.
11:55Are we together?
12:00Yes, we are.
12:03Yes.
12:09Any question?
12:27All right.
12:29That is uh that is clear.
12:32Uh that is very clear. Now,
12:35So, guys, I hope you are understanding
12:37the relationship between 42 and 43. Now,
12:3943, I'm simply saying that 43 is
12:42creating two things. 43 is creating an
12:45instance. 43 is creating an instance
12:48where you
12:50Okay? You
12:52will not appeal certain rights and you
12:55will appeal certain right.
12:57Are we together? So, certain uh certain
12:59orders. Now, for an order that is not
13:00appealable as of right, then you will be
13:04uh you will be
13:06seeking leave of court to appeal. Leave
13:09of court to appeal that order. Why?
13:11Because that order is not appealable as
13:14of right.
13:17Are we
13:18together?
13:24Yes, we are.
13:27All right.
13:28Now, that being said and done, I want us
13:31straight to go and talk about
13:34uh the appellate jurisdiction.
13:36So, somebody tell me which is the first
13:38court that has the appellate
13:39jurisdiction?
13:41So, let us talk about uh we have talked
13:43about the right of appeal, and I hope it
13:44is By the way, the right of appeal is
13:46very simple. It's just as simple as
13:47that.
13:49Okay? The right of appeal is as simple
13:51as as such. It is very simple. And what
13:54are we saying? We are simply saying that
13:56there are certain orders that are not
13:57appealable as of right.
13:59Okay? And therefore, if you are dealing
14:02if you are dealing with such orders, you
14:04must seek leave from court. You must go
14:06and seek leave from from court. It means
14:09without leave of court, you will not be
14:11able to appeal to appeal such order. So,
14:13you get leave so that the court can
14:15grant you leave to appeal that order.
14:18We'll come back to that. Put another pin
14:19there. Now, let's talk about the
14:20appellate jurisdiction. And I've said
14:22that in terms of the appellate
14:24jurisdiction, in terms of appellate
14:26jurisdiction, these are courts that have
14:28jurisdiction to entertain appeals. Okay?
14:31These are courts that have jurisdiction
14:34to um entertain appeals.
14:39Are we together?
14:45Yes, we are.
14:50Guys, are we moving together? We are
14:52discussing appeals.
14:54Yes.
14:56Yes, we are. Yes, we are moving
14:57together.
15:01You know, some of you keep saying yes,
15:02we are. Yes, we are.
15:06Okay. I hope you are putting it down.
15:09When I ask the question right now,
15:12all of you will not respond.
15:15So, I want you to to mean what you say.
15:40Okay.
15:42All right. So,
15:44So, I hope we mean what we say. So, we
15:46are together. So, we are together in
15:47terms of the right of appeal.
15:49Uh we are together in terms of the
15:51leave. I'm I'm coming back to talk about
15:53leave because leave covers a lot of
15:55things. So, I'm coming back to I'm
15:57coming back to it as well. Uh leave
15:59covers a lot of things.
16:00And I am uh coming back to
16:03uh back to it. Now, let's go back and
16:06talk about the appellate jurisdiction.
16:08Now, these are courts that have
16:10jurisdiction to entertain appeals.
16:12These are courts that have jurisdiction
16:14to entertain to entertain appeals. They
16:17are courts that have jurisdiction to
16:19entertain appeals.
16:28The first one is the High Court.
16:30Uh the first one is the High Court. Uh
16:33the first one is the High Court.
16:34Uh the High Court is the first court
16:37with the appellate jurisdiction. And in
16:40terms of its appellate jurisdiction, the
16:43High Court shall entertain the High
16:45Court shall entertain appeals number one
16:48from the subordinate courts. The High
16:50Court shall entertain appeals from the
16:52subordinate courts. And when I say when
16:54I say subordinate courts, when I talk
16:57about subordinate courts, we are talking
16:58about the courts that are number one,
17:01magistrate courts, and then other
17:04subordinate courts. Remember,
17:07not all subordinate courts are
17:09magistrate courts, but magistrate courts
17:11are subordinate courts.
17:13So, we have other courts that are not
17:16magistrate courts, but they are
17:17subordinate courts.
17:19So, in terms of subordinate courts, we
17:20have the magistrate courts. Number one,
17:22number two, we have the Small Claims
17:23Court. The Small Claims Court is not a
17:25magistrate court, okay? We have the
17:27Children's Court. The Children's Court
17:29is also a court
17:31which is a subordinate court. It is not
17:32a magistrate court. Are we together? And
17:35then, we also have now the tribunals. We
17:37have almost close to 30 tribunals, and
17:40those tribunals, unless otherwise, all
17:43the appeals from the tribunals will be
17:45going straight to the to the High Court.
17:47Okay? Or the courts of equal status. So,
17:51when I talk about the High Court, I'm
17:52talking about the High Court and the
17:53sister courts. That is the ELC and the
17:57ELRC. Now, these courts will entertain
18:00proceedings, or sorry, appeals from the
18:03magistrate courts and other subordinate
18:05courts, and also other designated
18:08tribunals. For instance, if you are
18:10dealing with the National Environmental
18:12Tribunal, then of course
18:14uh just give me 1 second.
18:34Sorry. So, I'm saying if you are dealing
18:36with the National Environmental
18:38Tribunal, uh that shall of course
18:40entertain decisions of NEMA or decisions
18:42related to decisions of NEMA, then you
18:44appeal straight to uh straight to the
18:46ELC.
18:48Okay? If you're dealing with the Labor
18:50Tribunal, then of course you go to the
18:52the ELRC.
18:54Okay? If you're dealing with uh the
18:57other tribunals like the Sports
18:58Tribunal,
18:59uh if you're dealing with a Tax Appeals
19:01Tribunal, you go to the High Court. So,
19:03what I'm saying is this, the High Court
19:05is the first court that will entertain
19:07or will enjoy the
19:09uh the appellate jurisdiction. It
19:12entertains the appellate uh
19:14jurisdictions. That is the appellate
19:16jurisdiction. Now,
19:18that is the High Court.
19:20The second court that has this
19:22jurisdiction is the Court of Appeal.
19:25Now, the Court of Appeal is primarily
19:27and entirely a an appellate court. The
19:30only jurisdiction of the Court of Appeal
19:32is to entertain appeals. Therefore, it
19:33is an appellate court.
19:35Are we together? It is an appellate an
19:38appellate court.
19:45I hope we are together. So, the Court of
19:48Appeal,
19:49uh its main function uh its main
19:51function is to entertain appeals from
19:55uh, from the High Court.
19:58Uh, that is first appeals and second
20:00appeals from the courts of equal status.
20:03Second appeals for I mean the second
20:05appeals
20:06uh, from courts.
20:08Sorry. The first appeals are from the
20:10High Court and courts of equal status
20:12and then we have the second appeals from
20:13the Magistrate Courts. Uh, the second
20:15appeals from the tribunals, select
20:17tribunals and also other subordinate
20:19courts. So, that is the Court of Appeal.
20:21That is the Court of Appeal. That is the
20:25Court of Appeal.
20:26Are we together?
20:28Are we together?
20:30So, please please uh, make sure that you
20:34uh, make sure that you understand
20:37the jurisdiction of the High Court in
20:39terms of appeals and jurisdiction of the
20:42Court of Appeal uh, in terms of appeals.
20:45So, I'll repeat it again. The Court of
20:46Appeal is an appellate court and the
20:49Court of Appeal deals only with appeals.
20:52That is the jurisdiction of the Court of
20:54Appeal. It is an appellate court only
20:57and therefore it entertains the first
20:58appeals from the High Court or the
21:01courts of equal status and that is uh,
21:03that is the
21:05the ELC and the ELRC and in other
21:09instances
21:10uh, we have the uh, the one in Mombasa
21:13which you call the Admiralty Court. But
21:15anyway, that is still just the normal
21:16High Court. Now, apart from that
21:20we also have the tribunals. So, some
21:22tribunals will also have the opportunity
21:26to have their decisions challenged up to
21:28the Court of Appeal. Select tribunal,
21:29not all tribunals. Some tribunals the
21:31Court of Appeal shall be the court of
21:33last resort, but some tribunals the High
21:35Court shall be the court of last resort.
21:37Now, in that regard we are talking about
21:38the second appeal. So, the first appeal
21:40is from the High Court to
21:42the Court of Appeal and then the second
21:44appeal is the appeal that started from
21:47the tribunal. I mean the matter was
21:49heard at the tribunal or the matter was
21:51heard at the Magistrate Court. It was
21:52appealed to the High Court. That was the
21:54first appeal and then it was appealed
21:56straight to the Court of Appeal.
21:59Okay? So, that is exactly what we are
22:01saying. That is exactly what what we are
22:04saying. So, we are saying that the Court
22:06of Appeal shall entertain first appeals
22:09and second appeals.
22:11Are we on the same page?
22:22Yes.
22:26All right. I think I saw somebody's
22:28hand.
22:30Uh, let's see who is having their hand
22:32up.
22:34Somebody was raising their hand. I don't
22:36know. Now they're not there. Okay, so so
22:39of the Supreme Court. Now, originally
22:42the Supreme Court actually right even
22:45right now, the Supreme Court is not
22:47really an appellate court. Okay? It is
22:49yes, but it was meant to be a
22:52constitutional court. The Supreme Court
22:55is a constitutional court. It means it
22:57it's supposed to entertain
22:59constitutional issues.
23:01The Supreme Court is not
23:03Okay? The Supreme Court is not a
23:06uh, is not an appellate
23:08uh, is it an appellate court? However,
23:10there are specific instances, the
23:12special instances where
23:15you can appeal to the Supreme Court. I
23:19want you to understand what I'm saying.
23:20Now, the Supreme Court is or was
23:24Okay? The Supreme Court is or was
23:28intended to be
23:31a constitutional court and it still is a
23:34constitutional court. It means it
23:36entertains issues and matters to do with
23:40uh, to do with um,
23:42um,
23:43constitution.
23:44If nothing is not within the apex, I
23:47mean the uh, within the constitution
23:49then the Supreme Court is not in there.
23:53So, that therefore means that apart from
23:56issues that are constitutional related
23:58then the Supreme Court is not invited or
24:02will not have jurisdiction. So, what is
24:04the limited jurisdiction of what is the
24:06limited jurisdiction of uh, the Court of
24:09Appeal? Sorry, the Supreme Court.
24:12What is the limited jurisdiction of
24:14uh, the Court of Appeal? Sorry, the
24:15Supreme Court. Why do I keep remembering
24:18uh, the Court of Appeal?
24:21So, the first one of course there are
24:23two issues. There are two issues. The
24:24first one is that it must be a question
24:27of application and the constitutionality
24:31of a provision. It must be touching on
24:34the applicability of the constitution.
24:37Are we together?
24:39The applicability of the constitution.
24:43Are we together?
24:44So, it means if it is not about the
24:47applicability of the constitution then
24:49that matter is
24:51uh, that matter is not within the
24:53jurisdiction of
24:55the Supreme Court. So, it must be
24:57something that is
24:58asking the Supreme Court to decide and
25:02to deliver its judgment on the
25:03applicability of the constitution.
25:07That is number one. Number two, it must
25:09be a matter of great public importance.
25:13It must be a matter of great public
25:15importance. It means if it is not a
25:19matter of great public importance then
25:21again you cannot go to the Supreme
25:23Court. So, when do you go to the Supreme
25:25Court? You go to the Supreme Court
25:28Okay? You go to the Supreme Court number
25:29one. Okay? Number one.
25:32Remember, you go to the Supreme Court if
25:36it is a question that touches on the
25:38applicability
25:40and the interpretation of the
25:42constitution.
25:45Okay? The applicability
25:47and
25:49the interpretation of the constitution.
25:52That is the first one. The second one,
25:54if it is a matter of great public
25:57importance.
25:58If it is a matter of great public
26:01importance.
26:03Are we together? A matter of great
26:05public importance.
26:08So, that is what we are saying and that
26:11is the only time that is the only time
26:14we are going to have the Supreme Court
26:15being invited. So, those two things.
26:16Now, what happens now? Now, we have said
26:19that for there to be an appeal to the
26:21Supreme Court then the two things must
26:24touch on the two areas that I've said.
26:25Sorry, the appeal must be touching on
26:27the two areas that I've said and how
26:28does that happen? There must be a
26:30certification. The Court of Appeal must
26:33certify a matter either of great public
26:37importance or it is a matter that is
26:40touching on the applicability or the
26:43interpretation of the constitution. And
26:45this you see so many uh, so so many
26:47times in criminal cases. What happens in
26:50criminal cases? The Court of Appeal is
26:52the court of last resort in all criminal
26:54matters. However, parties are allowed in
26:57criminal matters to proceed to the
26:59Supreme Court if they're going to invoke
27:02the Supreme Court's jurisdiction in
27:04interpreting or the applicability of a
27:08specific provision of the constitution.
27:11I hope we are understanding what I'm
27:14saying.
27:15So, you don't just appeal.
27:18Okay? You don't just appeal to the
27:20Supreme Court. Number one, there must be
27:23a certificate a certification by who? By
27:26the Court of Appeal that that that
27:28matter is of great public importance.
27:31That matter is of great public import
27:33importance or it is a matter that
27:36touches on that touches on the
27:38applicability and the interpretation of
27:42the constitution.
27:49Are we guys together?
28:00Yes, we are.
28:08All right. Any question there?
28:16Any question?
28:19I'm still just laying the basis of why
28:22we have appeals.
28:24I'm still laying the basis of why we
28:27have appeals
28:28and the appellate jurisdiction.
28:33Um,
28:35why we have appeals and the appellate
28:37jurisdiction. So, I'm going to repeat it
28:38for the last time and I'm going to say
28:40number one, we have the High Court. The
28:42High Court shall entertain appeals from
28:44where? Appeals from number one, the
28:47tribunals and the subordinate courts.
28:49Number one. Number two, the Court of
28:51Appeal. The Court of Appeal will have
28:53the first appeal, the first appeal being
28:56an appeal from from the High Court to
28:58the Court of Appeal. Number two, a
29:00second appeal. That is an appeal that
29:02was initiated from the subordinate court
29:05or the tribunal to the High Court and
29:07then from the High Court to
29:09uh, to uh, the Court of Appeal. And then
29:11lastly is the last court. That is the
29:14Supreme Court. Now, the Supreme Court
29:15primarily is a constitutional court. The
29:19Supreme Court is a constitutional court.
29:21It means if there's nothing that deals
29:23with if there's nothing that is dealing
29:25with the constitution then the Supreme
29:27Court does not have jurisdiction.
29:29It doesn't have your every jurisdiction
29:31of the Supreme Court must be provided
29:33for within the constitution. And
29:35therefore if there's nothing that deals
29:36with if there's a factual issue then
29:39that is not a matter that should come to
29:41the should come to the Supreme Court.
29:45Okay? Then how then do you appeal to the
29:48Supreme Court? Now, for you to appeal to
29:49the Supreme Court, the matter in
29:51question must satisfy either
29:55of the following thresholds. Number one,
29:57it is a question that is of great public
29:59importance, or it is a matter that
30:01touches on the applicability of
30:05or the interpretation of the
30:07Constitution. Now, if it meets that
30:10test, then what next is the step? The
30:12next step is the Court of Appeal because
30:15the matter is before the Court of
30:16Appeal, the Court of Appeal must
30:18certify. You have to apply for the
30:19certification before the Court of Appeal
30:21before you run to uh before you run to
30:24the Supreme Court. So, it must be
30:25certified. Now, again, if you apply for
30:28certification and the Court of Appeal
30:30has denied you certification, then you
30:32appeal to the uh to the Supreme Court
30:35challenging the decision of the Court of
30:36Appeal to deny you certification of that
30:39matter. You're not appealing the matter,
30:42but you're appealing the certification.
30:44It means that the Court of Appeal
30:47is the one that holds the key to the
30:49Supreme Court. You cannot go to the
30:51Supreme Court without going through the
30:53Court of Appeal. And therefore, before
30:55you go there, the Court of Appeal must
30:56give you a key card. And that key card
30:58is the certification. You must be
31:00certified. That matter must be
31:02certified. It must have a certificate.
31:04Now, if you apply for leave uh the Court
31:07of Appeal to get that certification so
31:09that you can appeal to the Supreme Court
31:11and they deny you, then you can appeal
31:14that denial to the Supreme Court. You
31:16are not appealing the substantive
31:18matter. You're simply telling the
31:20Supreme Court that, "Hey, I was trying
31:21to come in to the Supreme Court, but the
31:24Court of Appeal has said no. Please,
31:26give me leave to come." And then, the
31:28Supreme Court, if convinced, might give
31:31you that uh that leave. Might certify
31:33that matter as as important or as one
31:36that touches on the applicability of the
31:38Constitution. But again, when it comes
31:40to the litigation before the Supreme
31:42Court, it is it is we'll talk about it
31:45sometime back uh sometime in future. Uh
31:48but it is something that you start from
31:50the High Court.
31:52It is something that you start from the
31:53High Court. Why? Let me just mention it
31:55in passing. If you are intending to go
31:57to the Supreme Court, you must start
31:59from the High Court.
32:01It means if you go to the Court of
32:03Appeal and then you realize, "Oh,
32:06I want to go to the Supreme Court." That
32:07matter that is taking you to the Supreme
32:09Court, it is a matter that you must have
32:11raised in the High Court.
32:13Why? Because the High Court is the one
32:15that has the original jurisdiction when
32:17it comes to the interpretation and the
32:20applicability of the Constitution. So,
32:22any matter that you didn't raise in the
32:23High Court, then it cannot be appealed
32:27to where? Uh to the Supreme Court. It
32:29cannot be a new matter. We'll talk about
32:31the litigation before the Supreme Court
32:33uh when we get there. For now,
32:35let us look at something else. So, we
32:38have looked at the right of appeal and
32:39I've said, in terms of right of appeal
32:41to somebody who did not understand that
32:43we are saying that not all orders are
32:45are appealable. And of course, if you're
32:46in an exam, then you assume that all
32:48those orders are appealable unless the
32:50examiner has told you otherwise. So, if
32:52it is an order that is not appealable as
32:54of right, the examiner will tell you
32:56that this order is not one that is
32:58appealable as of right. And therefore,
33:00if you are told that, the next thing you
33:01know is you need to seek leave of court.
33:08Are we guys together?
33:19Yes, we are.
33:19>> Are we? Yes, we are.
33:22All right. That is the first thing. The
33:24second thing uh we'll talk about is the
33:26appellate jurisdiction. We have talked
33:28about uh both the three courts that have
33:31jurisdiction uh within the uh the
33:33Constitution, the High Court and the
33:35courts of equal status, uh the Court of
33:37Appeal, and the Supreme Court.
33:40So, any question there before we walk
33:42into leave of appeal?
34:01Yes, Sheila. Proceed.
34:06Um thank you, Jackton.
34:09I had a question. I I um in class G and
34:13sometime back when you were studying the
34:15jurisdiction,
34:17I think I had uh Miss Melisa Ng'ania
34:21mention that there are two instances
34:23where
34:25one can appeal, unless I had it wrong,
34:27to the Supreme Court as of right.
34:32Um
34:33Mhm. Proceed.
34:35So, I'm asking. I only remember one
34:39where it said that is being removed and
34:41then um
34:43Where what is being removed?
34:45A judge.
34:48There's usually a tribunal that
34:52um that is formed to remove a judge. So,
34:55if the judge is displeased by the
34:57outcome, they can proceed to the Supreme
35:00Court.
35:01But then, I I don't refer Sorry, I don't
35:03remember the
35:06the second one. I was hoping probably
35:09you can touch on that.
35:12I can't touch on what I don't know.
35:16Is it saying you you don't remember it?
35:18How will I touch on it if you don't
35:19remember it?
35:21So, the decisions of JSC uh the Judicial
35:24Service Commission is the one that is in
35:25charge of the removal of um
35:28uh the removal of um of judges.
35:31Uh so,
35:33I'm not quite sure whether you appeal
35:34straight to the Supreme Court, but uh
35:36I'll I'll check that. For us, for the
35:38second one, I don't know what the second
35:40one is. But yes, I'll check I'll check
35:42whether you can I don't think so, but
35:44anyway.
35:46That is that is
35:49What do you mean you appeal to the
35:50Supreme Court?
35:54Did someone hear that as well so that we
35:56can tell us?
35:59So, that we But again, as somebody tells
36:02us that, we can also look at the JSC Act
36:05and in terms of the procedures put in
36:07place to
36:08uh to deal with the removal of judges.
36:12Yes, Kilonsor.
36:15Uh thank you, Jackton. Yes, I had the
36:18same and it's actually the position. But
36:21then, that tribunal is not a
36:23constitutional tribunal.
36:26It's uh the tribunal that is formulated
36:29by the president upon the
36:31recommendations from the Judicial
36:32Service Commission.
36:35Yes.
36:36Mhm.
36:37Yeah, and maybe
36:38>> you appeal straight to the
36:41uh you appeal straight to the Supreme
36:42Court.
36:44Yes. And that was the position in the
36:47decision of Judicial Service Commission
36:49versus Justice Mutava.
36:54All right. So, guys, take note of that
36:56case.
36:57Uh we shall read it and then we shall
36:58come when you talk about the uh
37:01litigation before the Supreme Court,
37:03uh we shall have that.
37:05But again,
37:06uh
37:08pinch of salt.
37:10But um we'll discuss it. Uh read that
37:13decision.
37:15Uh and then we come back and uh
37:18discuss it.
37:21All right. Is there any question?
37:29Minus Susan.
37:32I just wanted to bring it to your
37:33attention
37:34uh
37:35Article 168
37:38eight.
37:39A judge who is aggrieved by the decision
37:41of the tribunal under the article may
37:42appeal against the decision to the
37:44Supreme Court within 10 days after the
37:45tribunal makes its recommendation.
37:48All right. Perfect.
37:51So, again, uh
37:54Lena, please type that case again on the
37:56chat
37:57uh so that we all capture it.
38:00Uh we all capture it.
38:03Yes, but remember that that is not that
38:05is not a normal appeal. It is not the
38:08ordinary appeal from uh
38:10uh in the ordinary litigation process
38:12which starts from the uh
38:14the subordinate courts to the High Court
38:15with Court of Appeal and to the
38:18uh to the Supreme Court.
38:22Okay? And of course, those tribunals are
38:24the ones that are usually convened by
38:26the president at any time at any time
38:28they would uh
38:30uh they would like. Anytime the
38:31president feels like um they need to
38:34convene a tribunal for the removal of a
38:35judge, of course, after the
38:37recommendation by the JSC,
38:39then they will do that. Not really
38:42within the constitutional
38:44uh uh framework. But when it comes to
38:47the ordinary conventional appeals, we
38:49come from the subordinate courts to the
38:51High Court
38:52uh to the Court of Appeal. But for you
38:53to leave the Court of Appeal to the
38:55Supreme Court, there must be
38:56certification as per one 164 uh read
39:00together with 163 of the Constitution.
39:02All right. So, is there any question so
39:04that we can go to leave to appeal?
39:09We can talk about leave.
39:11I want us to go to leave.
39:14Now, when it comes to leave,
39:17I've said that uh there are certain
39:19instances where you go to court and you
39:22request leave to appeal. There are two
39:24instances. The first one I've talked
39:26about and I've said, the first instance
39:28where you're going to get leave to
39:30appeal, the first instance where you're
39:32going to get leave to appeal, is an
39:35instance where you are trying to appeal
39:38an order that is not appealable as of
39:40right. You are trying to appeal an order
39:43that is not appealable as of as of
39:46right. Now, this order is not ordinarily
39:48appealable. It means you can't appeal it
39:49as of right. So, what do you do? You
39:51will go to court whether it is
39:54the magistrate court, whether it is the
39:56high court, or even the court of appeal,
39:59and you seek leave from that court
40:02asking that court to grant you leave to
40:04appeal that order dated this.
40:08So, it's very simple. Leave to appeal.
40:11So, what are you praying for? Leave to
40:12appeal.
40:14You get what I'm saying? It is a very
40:15simple thing. You're simply praying for
40:18leave to appeal.
40:21Okay?
40:22Now, how do you get that leave? You get
40:25that leave through an weak notice of
40:27motion, but I'll come back to that. The
40:29second instance where you're going to
40:30get leave to appeal is when you're
40:32appealing out of time. If you are
40:35supposed to appeal within the timeline
40:37provided for within the rules, and of
40:39course, if you are appealing to the high
40:40court is normally 30 days. If you are
40:43appealing to
40:45the court of appeal, again, it is it is
40:47more than 30 days. That is 60 days uh
40:49with some 14 days here there. So, if you
40:52are appealing out of time, if you are
40:55going to this court out of time, then
40:57you have to go and seek leave to appeal
40:59out of time. So, those are the two
41:01scenarios where you'll be seeking leave
41:04to appeal.
41:06The two scenarios where you'll be
41:07seeking leave to appeal.
41:12Guys, are we together?
41:14So, the first one I've said, when you
41:15are appealing an order that is not
41:17appealable as of right, it is an order
41:19that is not appealable as of right.
41:22Okay? You do leave. You seek leave to
41:26appeal. And then in the second instance
41:28in the second instance where you are
41:32uh appealing out of time, you will
41:34proceed and seek leave.
41:39Guys, are we together?
41:44Any question on leave before we get on
41:46the grounds?
41:57All right.
41:58So, so
42:00let me
42:01share my screen. I want us to prepare
42:02that uh application very quickly.
42:06Let's the player speed of it because
42:08really there's nothing to
42:10uh there's nothing to Can you see my
42:11screen?
42:16Yes.
42:18All right. So, assuming that uh this is
42:20our applicant respondent, you are in the
42:23magistrate court, you're going to the
42:24magistrate court, and you are moving
42:26under order 42.
42:30Uh could be order 42,
42:32uh order 51, order section 1A, 1B, 3,
42:36you know those provisions that we've
42:37talked about all the time. So, you're
42:39going to lead the court uh through a
42:41notice of motion, and you're asking the
42:43court for leave. The only prayer you're
42:44going to be seeking is leave to appeal.
42:47Okay? Now,
42:50So, what are you saying? That this court
42:54do you grant
42:56the applicant
43:01Sorry.
43:02The applicant
43:06leave
43:09to appeal
43:11the order
43:14dated
43:1612th
43:18February
43:212025
43:25out of time.
43:31Okay?
43:34That is if you are seeking leave to
43:35appeal out of time.
43:37Okay?
43:39Or
43:40if you're not seeking if you're seeking
43:41leave to appeal that order, you're
43:42simply saying that the court do grant
43:43the applicant leave to appeal the order
43:46dated 12th of February 2025. Full stop.
43:49Okay? And then of course,
43:52uh cost of the application.
43:57Cost of the application. This is the
43:58ordinary
43:59This is the ordinary Are we together?
44:02This is the ordinary uh
44:04basic
44:05uh application you'll make. There's two
44:08prayers.
44:09But there's something else that you
44:11might add there. Somebody tell me, what
44:13is it that we can add to this, and under
44:15what circumstance do we add it?
44:18Okay? Under what circumstance do we add?
44:22Remember, you're seeking leave to
44:24appeal.
44:25Leave to appeal.
44:27What are some of the things
44:29What are some of the things you can pray
44:31for, or what is that you're going to
44:32pray for in this application? Okay? As
44:35you seek leave to appeal. And under what
44:39circumstance do you do that?
44:44Yes, let's talk to
44:49Salome.
44:53Uh thank you. Uh another thing that you
44:55can seek is uh stay of execution.
45:00Stay of execution. When do you seek
45:03leave to stay of execution?
45:05When the
45:07when the decree
45:09when the decree holder has
45:11um or rather when a decree has been
45:13extracted
45:15and there is um
45:17the decree holder wants to execute the
45:21decree.
45:23Yes, normally
45:24So, ordinarily when there's an order
45:26against your client at any time, you
45:28will be seeking an order to an order of
45:31stay of execution.
45:33Okay? So, this could be an instance
45:36where the decree has already been
45:37extracted, and the decree holder is
45:39intending to proceed to uh to proceed uh
45:43to execute. So, at that moment, you will
45:45uh you will
45:48of course, go to court and have the
45:49court stay execution.
45:51Or generally when there's an order
45:52against your client.
45:54So, as you appeal, you seek stay. Or as
45:57you seek leave, you seek stay.
46:00Are we together?
46:12All right.
46:14Any question on that? Now, let's go to
46:16the grounds. There are only two grounds,
46:19uh but of course, you will expound those
46:20grounds uh depending on uh depending on
46:24the question. So, you just come here and
46:26indicate. We've done applications
46:29um in this class, so I'm assuming that
46:31we are good when it comes to the
46:33preparation of applications.
46:36We still do more.
46:41Which application is based on the
46:43following grounds?
46:45Now, what are the key grounds
46:47uh for an order of leave?
46:52Okay? An order of leave to appeal. Leave
46:54to appeal. If you need leave to appeal,
46:57what are some of the grounds you're
46:58going to rely on? There are two. The
46:59first one is that you have an arguable
47:02appeal.
47:05Okay?
47:07You have an arguable appeal.
47:10Number two,
47:11that you
47:13will suffer substantial loss
47:15or even damages should that leave not be
47:18granted. Should you not be allowed to
47:21appeal, you will suffer some serious
47:24damages or substantial loss.
47:28Those are the two main grounds. And then
47:30now you can you can bring other grounds.
47:33What are these other grounds? For
47:34instance, you could be saying
47:36you are in jail. That is why you didn't
47:38uh
47:39appeal in good time, or you are sick, uh
47:42you are in the hospital, you are in a
47:44coma. You didn't know that this judgment
47:47had been delivered. So, for any reason
47:49that is making you appeal late, you will
47:52indicate that under the grounds.
47:55I hope we are understanding what I'm
47:56saying. So, what I'm simply saying is
47:58this, that if you are going to court to
48:01seek an order of leave to appeal either
48:04out of time or to appeal an order that
48:06is not appealable, then you must be
48:08demonstrating that hey,
48:11I have an arguable appeal. I have a very
48:13good appeal that has high chances of
48:15success, but also I do have I do
48:20uh have chances of suffering some
48:23serious loss or damages should you guys
48:26not give me the uh the leave to appeal.
48:37I don't know whether that is home.
49:03Any question?
49:06Kamboni.
49:08Uh uh thank you, Dr. Um
49:10my my my question is on the court.
49:14Um
49:15I believe it is the magistrate's court
49:17that uh probably gave the decree uh or
49:22the judgment that uh
49:24we want to seek leave to
49:28to appeal.
49:29Why are we going before the same court?
49:31Why not the high court?
49:33If the what?
49:35Why are we going before the same court
49:37and not the High Court?
49:41Now, when seeking leave
49:44Yes.
49:45Now, leave you can seek in any court.
49:47You can seek leave in the Magistrate
49:49Court, the same court. But, if they deny
49:51you stay,
49:53you can you can seek leave in the
49:56in the High Court or in the upper court.
50:00If that matter is before the High Court
50:03If that matter is before the High Court,
50:04you can go to the same High Court, but
50:06if they deny you, you can go to the
50:08Court of Appeal. So, you have leeway.
50:10Just like stay, okay? Just like stay of
50:13execution. It's just like stay of
50:16execution.
50:18You can seek stay in the same court or
50:20you can go to the the court that you
50:22want to appeal to appeal to.
50:30Thank you.
50:35All right.
50:37Uh-huh, Salome?
50:41That's an old hand, sorry.
50:55All right. Sawa. So, I hope that is
50:58clear. There's nothing much to prepare
51:00on
51:02application for leave. It is just what
51:04it is. What you can see on the screen,
51:06that is what it is.
51:08So, if you are having trouble with
51:10drafting this application, please let me
51:12know so that we can
51:14nail it again. So, at that point, we
51:17have discussed a few things.
51:19We have discussed the right of appeal.
51:21We have discussed the appellate
51:22jurisdiction. We have discussed leave to
51:25appeal and the grounds and the instances
51:29when you can apply for leave. And then,
51:31of course, we have said that anytime
51:33you're applying for leave, remember that
51:35there is unless you are the one who is
51:37benefiting from the judgment. Remember
51:39that even the decree holder can appeal.
51:42If you've been awarded 10,000, but you
51:44wanted more, you can appeal to the to
51:46the Court of Appeal or to the High
51:47Court.
51:48Okay? For you to be given more. So, any
51:50person can appeal. So, unless you're the
51:52one benefiting from the decree
51:54you ordinarily would pray for stay of
51:57execution.
51:58Okay? There's a question there in 2018.
52:01Um
52:03that we shall be If you get time, we
52:04look at this where somebody was applying
52:08for leave to appeal and also the same
52:10time applying for a stay of execution.
52:15All right, that being said and done then
52:18let's go and talk about the procedure.
52:21So, in terms of procedure, we'll talk
52:23about the documents, but we'll talk
52:25about the procedure rules and I'll make
52:27it very clear now. So, we have two sets
52:29of procedure. We have two sets of
52:30procedure. The first one is the civil
52:35procedure rules under order 42. Let's go
52:38there.
52:39Civil procedure rules under order order
52:4242. Now, order 42 of the civil procedure
52:44rules provide for the procedure in terms
52:49of appeals. It gives you the procedure
52:51that should be followed if somebody is
52:53appealing.
52:55If somebody is appealing, it gives you
52:57the procedure when somebody is
52:59appealing.
53:01Are we together?
53:03Now, that procedure applies only to the
53:06High Court.
53:08Okay? It applies only to the High Court.
53:12It applies to the High Court
53:14alone, not any other court.
53:17Of course, the High Court and the
53:18Magistrate Courts down there.
53:20Then, we have the Court of Appeal rules.
53:23Now, the Court of Appeal rules will
53:25apply to the Court of Appeal. Now, the
53:26Court of Appeal has got its own set of
53:29rules that will apply when somebody is
53:32appealing to the Court of Appeal.
53:35So, if you are appealing to the High
53:37Court, it is order 42 rule
53:42appeal rule 35 that will apply to you.
53:45However, if you are appealing to
53:48the Court of Appeal, it is the Court of
53:50Appeal rules. If you are going to the
53:52Supreme Court, then we have the Supreme
53:54Court Supreme Court rules.
53:56I hope that is clear. The next thing
53:58that we we need to talk about, which we
54:00have talked about before, was the
54:02question of stay of execution
54:05stay of execution pending appeal.
54:07So, that is the last thing I'll talk
54:09about and then we'll get into the actual
54:11process. Now, in terms of stay of
54:12execution, we have said it even when I'm
54:15when I was talking about the question of
54:17um
54:18leave and I said at that point,
54:21remember, I said
54:23that um
54:24the moment you are going to get leave
54:28it means there's an order that was
54:30issued against you or your client. So,
54:33ordinarily, you will be staying
54:36the execution.
54:38Number two
54:39also, if you are going to be appealing
54:43assume that you're not seeking leave,
54:45you just want to go and appeal
54:47to the High Court or any appellate
54:49court, then ordinarily, you will be
54:51seeking stay of execution as you appeal.
54:55Stay of execution as you as you appeal.
55:00Are we together? Now, if it is appeal to
55:02the High Court, then that stay of
55:05execution is going to be sought under
55:07order 42 rule six.
55:09However if it is stay of execution of
55:13appeal that you are taking to the Court
55:15of Appeal, it is rule five rule five 2B
55:19of the Court of Appeal rules.
55:21So, in practice, when you hear
55:23somebody's making preparing a rule five
55:252B, it means they're making an
55:26application for stay before the Court of
55:29Appeal.
55:30Stay before the Court of Appeal.
55:33Are we together?
55:35Now, so in terms of stay of execution,
55:38there are a few things you need to
55:39understand.
55:40There are a few things you need to
55:41understand about somebody's having their
55:43microphone on.
55:44I don't know what kind of uh
55:46noise that is.
55:49But, uh
55:53please
55:54uh
55:55Kilu
55:58Any Kilu, do you want to tell us
56:00something?
56:04Ennis, mute your microphone, please.
56:07All right.
56:09Now, I was saying that in terms of stay
56:11of execution, there are a few things you
56:13need to know, which I already mentioned
56:14before. I'm just going to rush through
56:15them so that you understand. We are
56:17still laying basis. Understanding the
56:19content of appeals before we prepare the
56:23memorandum of appeal and before we talk
56:25about the actual the actual appeal
56:28proceeding. So, the first one is that if
56:31you are appealing and you intend to
56:33to have a stay of execution you need to
56:35know that number one, that that appeal
56:38will not act as stay.
56:42The fact that you're appealing does not
56:44mean that the decree holder will stop
56:46executing. No. The decree holder will
56:49still execute even though you are still
56:52you are still appealing.
56:54The decree holder will still execute
56:57even though you are you are appealing.
57:00So, that is to mean that you are appeal
57:02will not act as automatic stay. The
57:06appeal will not act as automatic stay. I
57:09hope that is clear.
57:11Your appeal shall not act as an
57:14automatic stay. You have to go to court
57:16and seek stay.
57:18That is the first one. The second one is
57:20that which court do you go to? You can
57:22go to the same court that issued the
57:24judgment that you're appealing against
57:26or you can go to the court that you're
57:29appealing to. Either of them.
57:31That is number two. Number three for you
57:34to be granted an order of stay
57:38for you to be granted an order of stay
57:41then you have to demonstrate the
57:42following factors.
57:44And in the paper that we saw uh two
57:46weeks ago uh you saw the examiner asking
57:49you what factors the court will the
57:52court will consider before you are
57:53granted the order. And that order was an
57:56order of stay. So, of course, the first
57:58one is that you will suffer substantial
58:01loss.
58:02Unless stay is granted, you will suffer
58:05substantial substantial loss.
58:09So, the substantial loss that you're
58:11going to be suffering
58:12if that proceed sorry, if the execution
58:15is not is not stay. The next one
58:19you also have to demonstrate that you
58:23have moved to court. You've made an
58:25application without without unreasonable
58:28delay.
58:29It means if you delay in seeking that
58:32order of stay, you will not be getting
58:35it.
58:36You will not get you will not get an
58:38order of stay.
58:39Are we together? If you
58:42go to court
58:43after a long delay, then of course, you
58:46will not get an order of you will not
58:47get an order of stay.
58:51Are we
58:52together?
58:56And then, of course, lastly is that you
58:59have deposited uh security for cost as
59:02the court may order. So, we talk about
59:04security for cost. This is where if you
59:06are appealing
59:08you need to deposit some money
59:10as security for cost uh so that
59:14uh so that um the court is sure that
59:17you're not just wasting the court's
59:19time. That we are sure that you're not
59:20just wasting our time.
59:25Are we together?
59:36>> All right.
59:38So, there is a same provision when it
59:40comes to the stay of execution before
59:42the court of appeal.
59:43Uh it is same provision when it comes to
59:45the stay of execution before
59:47uh before the court of appeal. Now, I
59:49want us to start talking about appeals
59:51to the High Court in terms of
59:53documentation, in terms of uh
59:56the timelines.
59:58But before then, I will take three
1:00:00questions
1:00:01and then we can move
1:00:03uh forward.
1:00:20Questions, please. Lucy.
1:00:25Yes.
1:00:26Good evening. So, my question is on the
1:00:28part of factors that the court will
1:00:30consider before giving stay orders.
1:00:32You've said the deposit or deposit of
1:00:35security for cost. What if it's in a
1:00:38scenario where the
1:00:40it's an issue of the statutory power of
1:00:42sale? Can the title in question be used
1:00:45as the
1:00:46security?
1:00:48No.
1:00:49Deposit
1:00:51When it When it comes to When it comes
1:00:53to the question of security for cost, it
1:00:56is money.
1:00:57The person appealing must deposit some
1:00:59money. Remember, why What is it called?
1:01:01It is called security for
1:01:04security for cost.
1:01:06Okay? Or sometimes it's security for
1:01:08cost and sometimes it's security for
1:01:10performance of an order.
1:01:13Let me give an example. So, if it is a
1:01:15security for cost, if it is a question
1:01:17to do with security for cost, what are
1:01:20we saying?
1:01:22We are saying that before you proceed
1:01:25and appeal, before you proceed and
1:01:28appeal, the court will require you.
1:01:30Because remember, if you lose the
1:01:31appeal, you will pay cost.
1:01:34So, that cost, the court will require
1:01:36you that you pay it in advance. You
1:01:38deposit money to pay it in advance. Are
1:01:41we together? That is security for cost.
1:01:43Number two, we have security for the
1:01:46performance of the decree
1:01:50or performance of an order. For
1:01:51instance, if the court order that you
1:01:53pay the plaintiff 1 million
1:01:56and you decided to appeal, the court
1:01:58shall require that you deposit that
1:02:00security with the court. That 1 million,
1:02:03you need to deposit it in the court.
1:02:06Okay? You need to deposit that with with
1:02:09the court.
1:02:11So that if you lose, then we just give
1:02:13this money to the
1:02:17plaintiff.
1:02:18Why is that? That is made to scare away
1:02:23jokers. So, you That makes you appeal
1:02:27just because you know very well you're
1:02:28going to win. You have a good appeal.
1:02:37I don't know whether we are together,
1:02:38Lucy. So, those two Those two securities
1:02:41are different.
1:02:45Yes, we are. Thank you. Yes. Okay.
1:02:49Okay. Mhm.
1:02:51Yes,
1:02:52um
1:02:54somebody called um
1:02:57Let's see. It's called Muita Moses.
1:03:01Mwalimu, maybe on the same question that
1:03:04she has just asked. In an instance where
1:03:06maybe you are a pauper, I understand
1:03:08some
1:03:10someone may decide to maybe appeal as a
1:03:12pauper and they do not have the
1:03:13security. What happens?
1:03:15The court will waive.
1:03:18It will be waived. The court will
1:03:19usually waives uh
1:03:21uh the security. So, you can only appeal
1:03:24after the court has given an order
1:03:26waiving
1:03:28the the security. So, again, we'll see
1:03:30that when we get to the Court of Appeal
1:03:31rules
1:03:32where it will be very clear that at any
1:03:35point where somebody's appealing and
1:03:37they're not able to afford or they are
1:03:39really paupers, then of course the court
1:03:41will not stop because that again goes
1:03:43into
1:03:44uh straight to article 48 in terms of
1:03:46access to justice.
1:03:49Article 48 in terms of access to justice
1:03:51uh where
1:03:53the court is not supposed to stop you
1:03:55from accessing justice just because
1:03:57you're not able to pay the security for
1:03:58cost.
1:04:05Okay, Muita?
1:04:09Yes, I understood. Thank you.
1:04:15All right.
1:04:19Uh-huh. Somebody
1:04:25Last question.
1:04:27I'm the last question.
1:04:28And then we can begin
1:04:30uh the appeals to
1:04:32the High Court.
1:04:41Lord
1:04:43Chumo, yes.
1:04:46Hello. My question is this, sir.
1:04:49Mhm. Uh
1:04:51while filing an application
1:04:54to to file
1:04:56application for leave
1:04:59to appeal out of time.
1:05:01Can you file the same simultaneously?
1:05:02Like
1:05:04the application to
1:05:06Yes?
1:05:07Which one Which one and which one?
1:05:11Application for enlargement of time and
1:05:13an application for leave to appeal out
1:05:16of time.
1:05:17It is one document.
1:05:22Your first prayer will be
1:05:24uh an leave to appeal out of time. That
1:05:27is what you need.
1:05:30You know, once time has been enlarged,
1:05:32it means you've been granted leave to
1:05:33appeal out of time. So, it's just one
1:05:35prayer.
1:05:39Okay?
1:05:41Okay.
1:05:42But also remember that even in the
1:05:44instance
1:05:45even in the instance where you are
1:05:47seeking leave to appeal out of time for
1:05:49an order that is not appealable, it
1:05:51means you're going to pray for two uh
1:05:53two orders. The first one, leave to
1:05:54appeal that order. Number two, leave to
1:05:57appeal it out of time.
1:05:58Okay? Leave to appeal that order and
1:06:01leave to appeal it out of time. And in
1:06:03both instances, you're just going to
1:06:05have the same notice of motion, prayer
1:06:06one and prayer two.
1:06:09So, you cannot draft two applications or
1:06:11three documents to have different
1:06:14prayers. All of them will be the same
1:06:15document because all of them are
1:06:17uh applications
1:06:20or our prayers that you're going to seek
1:06:21in an application.
1:06:26Okay, that's answered.
1:06:28Okay.
1:06:31All right, Makaya Ian.
1:06:35Yes, thank you. I was asking
1:06:38uh in uh you are you are
1:06:41filing an appeal an appeal uh that is
1:06:44within right and
1:06:46uh the one that you don't need leave to
1:06:48appeal
1:06:50and you want to also to ask for stay of
1:06:53execution. You will make a an
1:06:55application for stay before you appeal
1:06:57or it is done concurrently?
1:07:02Now, it's done There must be an appeal.
1:07:07There must be an appeal or there must be
1:07:09an appeal that is ready. So, normally,
1:07:11it depends. Uh let's say let's let's
1:07:14give it at this time. So, let me let let
1:07:16me give you this scenario. So, if you
1:07:18are in court, this is what happens in
1:07:20practice. If you are in court
1:07:22and the court has issued an order, the
1:07:24court has issued an an order.
1:07:27Okay? And in that order, the court has
1:07:30indicated
1:07:32the court has indicated
1:07:34uh that you pay the defendant 2 million.
1:07:39Now, you will rise up You will rise up
1:07:42and you seek leave. You tell the court,
1:07:44"Grant me leave uh to appeal uh sorry,
1:07:48grant me stay of execution of this order
1:07:51for 30 days pending appeal." That is
1:07:53stay pending appeal. So, even though
1:07:55you've still not prepared the appeal
1:07:58documents, the court will the court will
1:08:01grant you leave.
1:08:04Not really leave, but the court will
1:08:05grant you stay of execution. So, it
1:08:07means within 30 days, you will be
1:08:09expected to have filed your appeal to
1:08:11have to have filed your appeal.
1:08:14And of course,
1:08:15even after filing that appeal,
1:08:18uh you will
1:08:20uh you will still be riding on the said
1:08:22said order. So,
1:08:26stay of execution pending appeal. So,
1:08:28the court will give an order that that
1:08:30execution be stayed until the appeal is
1:08:33the until the appeal is done. So, it
1:08:34means that if you don't appeal in that
1:08:36within that time, then the stay orders
1:08:38will will lapse.
1:08:45So, you can pray for that order whether
1:08:47you've you've you've filed an appeal or
1:08:49not. But in the instance where you are
1:08:52appealing out of time, you must already
1:08:54have that appeal when you make that
1:08:56application.
1:09:01Thank you. Thank you very much.
1:09:04Okay.
1:09:09Any question?
1:09:10Last question.
1:09:12Guys, I need you to understand the
1:09:14theories I've mentioned in terms of
1:09:15appeals.
1:09:17Uh I want you to understand uh the
1:09:19theories that uh
1:09:21I have mentioned in as far as appeals
1:09:23are concerned
1:09:25because they're very very fundamental.
1:09:29You're not able to understand appeals
1:09:31unless you understand them. So, if you
1:09:32have a question again,
1:09:34please, please, please
1:09:37ask.
1:09:40Please ask
1:09:41so that we can all answer
1:09:44and so that we can all be on the same
1:09:46uh on the same page.
1:09:52Are we together?
1:09:58So, anyone with the last question as I
1:10:00bring my screen up?
1:10:20Sorry, just give me a second. I want to
1:10:22bring up my screen.
1:10:51All right, let me project it.
1:10:56All right, not before that. Before we
1:10:57project, now let's talk about appeals to
1:11:01the High Court.
1:11:03Uh that is what I want us to um uh
1:11:05proceed with. Appeals to the High Court.
1:11:08Appeals to the High Court. Now, in terms
1:11:10of appeals to the High Court, we shall
1:11:12talk about the timelines and we shall
1:11:13talk about the documentation. Very
1:11:16simple and then we shall move we shall
1:11:18move to the next things.
1:11:20Guys, are you with me?
1:11:22Are we together?
1:11:25Yes, we are.
1:11:30Thank you. Now,
1:11:33appeals to the High Court.
1:11:36What do you need to understand about
1:11:39appeals to the High Court? Now, the
1:11:41first one are the timelines.
1:11:44Okay, what are the timelines? The
1:11:46timelines are 30 days.
1:11:49Okay, 30 days. So, if you're going to
1:11:51appeal to the High Court, you have to
1:11:53appeal within 30 days. So, from the date
1:11:56that order is given, you have 30 days to
1:12:00appeal to the High Court.
1:12:02Okay, how do you appeal to the High
1:12:04Court? You appeal to the High Court by
1:12:07filing your memorandum of appeal Sorry,
1:12:09memorandum of appeal that is prepared in
1:12:12the same manner as a pleading.
1:12:15Let me make something clear.
1:12:17Sometimes, guys, sometimes, and I'm
1:12:20saying sometimes,
1:12:22you are going to get an instance
1:12:25where the examiner is telling you that
1:12:27an order was issued. Okay, an order was
1:12:32issued.
1:12:33Are we together?
1:12:34The court issued an order against the
1:12:36defendant.
1:12:38The court issued an order against the
1:12:40defendant.
1:12:44Nairobi.
1:12:53All right.
1:12:54Now, the reason why I keep asking that
1:12:56question
1:12:57uh is because
1:13:00when it comes to when it comes to
1:13:03uh issues to do with um appeals,
1:13:07most of it most of it most of it or most
1:13:10of them
1:13:11are actually application questions.
1:13:14They're mostly application questions.
1:13:17Okay?
1:13:19So, that means that you need to
1:13:21understand the idea so good
1:13:24because if you don't understand, then
1:13:26you will not uh you will not um
1:13:30you will not understand anything.
1:13:32Literally, I mean anything.
1:13:34Okay? You will not understand that this
1:13:37question is uh is now asking you about
1:13:41about um
1:13:44appeals. So, I was saying, you will find
1:13:47a question telling you the following
1:13:48things. You will be told that number
1:13:50one, uh an order was issued against the
1:13:54defendant. Okay, an order was issued
1:13:58against the defendant who is your
1:13:59client. Your client has come to your
1:14:01office and they're telling you they're
1:14:02not happy with that order.
1:14:04Prepare the necessary pleadings.
1:14:07You know, if you're told to prepare the
1:14:09necessary pleadings, some of you will
1:14:11not understand that and they will
1:14:14proceed and they will proceed and start
1:14:17talking about planes and all that. No,
1:14:19that is not a plaint.
1:14:21That is not a plaint. So, at that
1:14:23moment, what are we talking about? We
1:14:25are talking about a memorandum of
1:14:27appeal. So, at any point where an order
1:14:30has been made, at any point where an
1:14:33order has been made, then if you are
1:14:36told to prepare
1:14:38a pleading,
1:14:39if you are told to prepare a pleading,
1:14:42then the examiner is simply asking you
1:14:44to prepare
1:14:46prepare a memorandum of appeal. It means
1:14:50the only way you can challenge an order
1:14:52through a pleading is through a
1:14:54memorandum of appeal. The rest of the
1:14:58remedies we talked about were
1:15:00were applications.
1:15:04Are we together?
1:15:08Oh, we are not.
1:15:15Somebody say we are together or we are
1:15:16not?
1:15:21Yes, we are.
1:15:26All right. So, what I'm saying is this,
1:15:28the only pleading that you are going to
1:15:29draft after an order was made, a
1:15:32judgment was delivered, a decree or a
1:15:34ruling, is a memorandum of appeal.
1:15:38So, if you're told to prepare a pleading
1:15:39at a time when there is already an
1:15:41order, a judgment, or a decree, you are
1:15:44talking about a memorandum of appeal.
1:15:48Are we together? Now, that is clear.
1:15:51Now, let us go and talk about the
1:15:54structure of a memorandum of appeal.
1:15:56Now, a memorandum of appeal will simply
1:15:59contain two things. It will contain the
1:16:01grounds of your appeal and then it will
1:16:04also contain the
1:16:07the prayers. It is a pleading. So, it
1:16:09will give us the grounds of your appeal,
1:16:11but also it will give us your prayers.
1:16:14What are you praying for? Yes, you are
1:16:15appealing. What are you praying for?
1:16:18Lastly, the respondent doesn't file
1:16:20anything in terms of appeals except
1:16:23submissions. It means if you are
1:16:26appealing, you're the one preparing a
1:16:28memorandum of appeal. There is no
1:16:30response to memorandum of appeal. It is
1:16:32just a memorandum of appeal. Now, it is
1:16:34upon you as the appellant to go and
1:16:37convince the court.
1:16:40Okay? The respondent
1:16:42you are appealing against will not file
1:16:44anything unless they want to file
1:16:47submissions, but they don't file There's
1:16:49no response to a memorandum of appeal.
1:16:51Why? Because the court already gave an
1:16:54order. The court gave an order and that
1:16:57order is what the respondent is relying
1:16:59on. So, when you're appealing, it's like
1:17:01you're appealing against the court, not
1:17:04against the
1:17:05respondent.
1:17:10Are we together?
1:17:17Yes, we are.
1:17:19Let me bring up my memorandum of appeal.
1:17:23Let me bring up my memorandum of appeal.
1:17:27We can draft it together.
1:17:29See the two parts
1:17:31and then
1:17:32reach a conclusion. Okay?
1:17:35I'm hoping that you are able to see my
1:17:37screen.
1:17:38I can see my screen very clearly.
1:17:44You can see my screen very clearly.
1:17:48So, this is a memorandum of appeal.
1:17:50Uh let's just do
1:17:53some uh editing.
1:17:55Some editing there. So, this is in the
1:17:57High Court.
1:17:59So, the same memorandum in the High
1:18:00Court is the same memorandum
1:18:02uh
1:18:03in the Court of Appeal.
1:18:06When you go to the Supreme Court, it is
1:18:07a petition.
1:18:10Uh in the High Court of Nairobi,
1:18:12uh Civil Appeal number
1:18:17So, we
1:18:19that is a Civil Appeal number.
1:18:22Okay? So, who are the parties?
1:18:25The parties are
1:18:29XYZ
1:18:31uh who is our res- Sorry, we have Joe
1:18:34Blogs,
1:18:36the appellant,
1:18:37and also we have the respondent. So, the
1:18:39parties are appellant, respondent. The
1:18:41moment you see the appellant, not the
1:18:43applicant, but the appellant, we know it
1:18:46is
1:18:47uh we know straight away that it is a
1:18:49uh it is an appeal. So, we have the
1:18:52appellant and also we have the the
1:18:54respondent or appellants and
1:18:56respondents. And then it contains the
1:18:59orders the orders and then it contained
1:19:03uh it contains the reasons where What
1:19:06are you praying for?
1:19:07And then of course it
1:19:09um
1:19:10must be signed, must be dated just like
1:19:12any other appeal. So, this is easily a
1:19:15one-page document.
1:19:17A memorandum of appeal is not so big. Uh
1:19:19um
1:19:20A memorandum of appeal is not is not so
1:19:22big. So, in terms of the procedure we
1:19:24have said you have to file your
1:19:25memorandum of appeal within 30 days
1:19:27within 30 days
1:19:29and then of course
1:19:31that memorandum of appeal must be
1:19:32accompanied by
1:19:34record of appeal.
1:19:36So I'm coming back to the record of
1:19:37appeal but we are saying that within 30
1:19:40days if you are appealing to the High
1:19:41Court you should be able to file your
1:19:43memorandum of appeal and that memorandum
1:19:45of appeal shall be accompanied by a
1:19:47record of appeal. I would get up. Now it
1:19:50is 30 days unless you are seeking leave.
1:19:53Okay? So if you are seeking leave and
1:19:55you are granted leave then 30 days from
1:19:57the date the leave is granted. But if it
1:20:00is an order that is not that does not
1:20:02require leave then it is 30 days from
1:20:04the date of that from the date of that
1:20:06order. Now how do you prepare a
1:20:09memorandum of appeal? Republic of Kenya
1:20:12in the High Court of Nairobi it means
1:20:13you are appealing to the High Court
1:20:15civil appeal number that of 2025 or 2024
1:20:19whichever you would want and then you go
1:20:21to the memorandum of
1:20:24memorandum of appeal. What are you
1:20:25saying? That the appellant being
1:20:27dissatisfied by the judgment of the High
1:20:29Court the sorry
1:20:33So of course we are not in the High
1:20:35Court so the judgment of
1:20:37the honorable magistrate
1:20:45the honorable magistrate
1:20:49dated
1:20:52the 20th day of March or dated 20th
1:20:56March
1:20:592019
1:21:01hereby appeals to this court against the
1:21:04whole of the said judgment on the
1:21:06following grounds. So you are telling us
1:21:08that you are appealing to
1:21:11this court which is the High Court in
1:21:13this scenario against the whole of the
1:21:15said judgment.
1:21:21Are we together?
1:21:41Yes we are.
1:21:51All right.
1:21:53Now any question after that? You don't
1:21:54want us to it's a very simple document
1:21:56there's no confusion. So
1:21:59you have the appellant respondent
1:22:00memorandum of appeal that the appellant
1:22:02being dissatisfied by the judgment of
1:22:03the honorable magistrate dated 20th of
1:22:06March 2019 hereby appeals to this court
1:22:09against the whole of the said judgment.
1:22:11You have to tell us you are appealing
1:22:12against what sections of the judgment.
1:22:15If you are appealing against just part
1:22:17of it you will indicate which part you
1:22:19are you are appealing against and on
1:22:21what ground. And then you come to the
1:22:24grounds. Now you can see I have
1:22:26highlighted some things in green. Now
1:22:29these are standard provisions or
1:22:31standard statements whenever you are
1:22:32appealing that the judge sorry the
1:22:35magistrate
1:22:36you know that we are we are appealing to
1:22:38the High Court so this is the
1:22:40magistrate.
1:22:46That the magistrate erred in law and in
1:22:49fact
1:22:51and we come and explain that.
1:22:55The magistrate erred in law
1:22:59You don't even need to explain how you
1:23:01will do that in your submissions.
1:23:06magistrate
1:23:08erred in law and in fact
1:23:10by
1:23:12okay so let's start with the first one
1:23:14the magistrate erred in law
1:23:15and in fact by refusing to admit the
1:23:18evidence adduced by the appellant. Okay?
1:23:23Who was the defendant at that time? That
1:23:25the magistrate erred in law by admitting
1:23:27the expert opinion
1:23:30as evidence without the testimony of the
1:23:32expert.
1:23:33That the magistrate erred in law by
1:23:36denying the appellant the opportunity to
1:23:37cross-examine
1:23:39the maybe the plaintiff.
1:23:42So this is this is not criminal so the
1:23:44plaintiff.
1:23:46So
1:23:47you are not supposed to explain just say
1:23:49they erred in law. Now why do we say
1:23:51erred in law and in fact? Now if it is a
1:23:54first appeal which is appealed to the
1:23:55High Court you are allowed to you are
1:23:58allowed to proceed and appeal on the
1:24:02question of law or a question of fact.
1:24:04So to avoid the issue of trying to
1:24:07figure out which one is law which one is
1:24:08fact you just write erred in law. So for
1:24:11instance if you were not given
1:24:14an opportunity to call your witnesses
1:24:16you simply say the magistrate erred in
1:24:19law and in fact by failing to give the
1:24:21appellant an opportunity to to call his
1:24:25witnesses.
1:24:27Are we together? To call his witnesses.
1:24:32I don't know whether we are together.
1:24:39So if it is appealed to the Court of
1:24:41Appeal then a second appeal you can only
1:24:44talk about the question of law. So you
1:24:46instead of say
1:24:48of law and in fact you talk about the
1:24:51magistrate erred in law because it is a
1:24:53second appeal. We don't talk about
1:24:54second appeal but the first appeals that
1:24:56are going to the High Court and first
1:24:58appeals that are going to the Court of
1:24:59Appeal from the High Court for the first
1:25:01time you talk about erred in law and in
1:25:03fact because that is a first appeal and
1:25:06therefore you are allowed to appeal on
1:25:07questions of law and questions of fact.
1:25:09Second appeals you can only appeal on a
1:25:11question of on a question of law. So
1:25:13it's very simple and then you come and
1:25:15give us the reasons wherefore which I
1:25:17said it is a pleading. So you have to
1:25:19have the prayers. In all pleadings
1:25:20plaint petition defense anything you
1:25:24have to have the reasons wherefore. What
1:25:26are you
1:25:27praying for? So reasons wherefore the
1:25:29appellant prays as follows that number
1:25:31one the appeal be allowed number two the
1:25:34cost of the appeal and any other order
1:25:36that the court may deem just and
1:25:39expedient dated and signed
1:25:41this day
1:25:44to be served upon
1:25:46donor file to be served upon.
1:25:48So dated that day it is signed by the
1:25:50advocate donor file by to be served
1:25:53upon.
1:25:54Are we together? It is very simple. Very
1:25:58simple. I think at the memorandum of
1:25:59appeal is the second easiest.
1:26:03It is the second easiest actually
1:26:06actually is the easiest followed by a
1:26:08defense
1:26:09or a memorandum of response or an
1:26:12answered petition. That's very simple
1:26:14documents.
1:26:16Okay? So just what are the grounds of
1:26:18why you are appealing? Why are you
1:26:20appealing? For that reason why you are
1:26:22appealing the magistrate or the judge
1:26:24erred in law and in fact if it is a
1:26:26first appeal. Second appeal erred in law
1:26:29alone. And then what are you praying for
1:26:31in terms of reasons wherefore the appeal
1:26:33be allowed.
1:26:37Once you say the appeal be allowed then
1:26:39that covers every prayer that you that
1:26:41you want and then the cost of appeal and
1:26:44any other order dated and signed full
1:26:45stop. It is just a one page document.
1:26:49Guys do you feel like this is something
1:26:52you can do should you be told
1:26:55to prepare it?
1:27:04If you are feeling like you can't do it
1:27:07let me see your hand up so that we can
1:27:09talk about it again.
1:27:15Let me see your hand
1:27:18so that we can talk about it again.
1:27:23There's no hurry.
1:27:24In the next class we shall talk about
1:27:27constitutional litigation which covers
1:27:29the JR. After judicial review we only
1:27:32have
1:27:33we only have um
1:27:36um cost and tribunals
1:27:39and we are done with civil. So there's
1:27:42no hurry.
1:27:45So we still have like 12 classes
1:27:46remaining.
1:27:4712 or around 15 classes remaining
1:27:51to the point where you are doing your
1:27:52exams. That means we we will finish in
1:27:55time we look at the past papers and
1:27:57we'll go over
1:27:58uh civil again. There's so much time but
1:28:01within that time that is remaining
1:28:03please please please I'm asking you to
1:28:05ask questions so that um
1:28:14we are on the same page.
1:28:16Yes let's start from uh
1:28:20Somebody
1:28:56Guys are we on the same page?
1:29:43>> You guys are not saying something.
1:29:56Mhm? Yes, we are.
1:29:59Yes, we are.
1:30:01Now,
1:30:03I'm going to do a summary of what we
1:30:05have talked about.
1:30:08I'm going to do a summary of what we
1:30:10have uh
1:30:11uh talked about.
1:30:14So, that we understand.
1:30:17Uh and as we do a summary for the class,
1:30:21uh if you have a follow-up question,
1:30:23please do ask.
1:30:25So, we introduced the class by talking
1:30:27about appeals.
1:30:29And we said an appeal is the last remedy
1:30:32against judgment.
1:30:34It means if you like a judgment, sorry,
1:30:37if you don't like a judgment, if you're
1:30:38not happy with the judgment, what will
1:30:40you do? You will proceed and
1:30:42uh you will proceed
1:30:46uh and uh appeal against it. Okay? Now,
1:30:50in terms of appeals, we have talked
1:30:51about the first one, the right of
1:30:53appeal. And in terms of the right of
1:30:55appeal, we have talked about you need to
1:30:59know two things. The first one, under
1:31:01order 43, there are two types of orders.
1:31:04The first one are orders that are
1:31:06appealable as of right. It means you can
1:31:08appeal them at any time you want, uh of
1:31:11course within the time limit provided,
1:31:12uh within the rules. And you don't need
1:31:14leave, of course, or permission of the
1:31:15courts to appeal them. Those are orders
1:31:18that are appealable as of as of right.
1:31:20Secondly, we have orders that are not
1:31:22appealable as of right. It means with
1:31:24these orders, you have to get leave of
1:31:26court to appeal them. Are we together?
1:31:29Number two, we have talked about the
1:31:32same leave of appeal and we said that
1:31:33two instances where you get leave to
1:31:36appeal. The first one is when the order
1:31:38is not appealable as of right. Number
1:31:40two is where you are appealing out of
1:31:43time. If you are appealing out of time,
1:31:45then of course you need leave of court
1:31:48to appeal.
1:31:50Are we together? And then, after that,
1:31:53we have talked about the application for
1:31:55leave and we said when you are making an
1:31:56application for leave, a notice of
1:31:58motion and a supporting affidavit. And
1:32:01sometimes you will be praying for
1:32:04uh a stay of execution if stay of
1:32:06execution is imminent. Are we together?
1:32:09And if it is imminent again, you can
1:32:11move to go through a certificate of
1:32:13urgency.
1:32:15Are we together? That is clear. We've
1:32:17talked about the appellate jurisdiction,
1:32:19that is the High Court, the Court of
1:32:20Appeal, and the Supreme Court. We have
1:32:22talked about how the High Court handles
1:32:25appeals from the subordinate courts and
1:32:26the tribunals for the first time. And
1:32:28then we talked about the Court of
1:32:29Appeal, which has the appellate
1:32:31jurisdiction to entertain appeals from
1:32:33the High Court for the first time or
1:32:35from the subordinate courts for the
1:32:37second time. Those are appeals for the
1:32:40second time, the second appeal.
1:32:41And then we talked about the Supreme
1:32:43Court, where we say that somebody can
1:32:45appeal to the Supreme Court from the
1:32:47Court of Appeal
1:32:48if of course uh that matter is a matter
1:32:52of great public importance or a matter
1:32:54that has been certified as one that
1:32:57touches on the interpretation of the
1:33:00Constitution.
1:33:02Okay? And then, after that, we have gone
1:33:05and talked about uh the question of
1:33:08appeals to the High Court. And uh we've
1:33:10talked about before the appeals to the
1:33:11High Court, of course, we talked about
1:33:12the question of stay of execution, where
1:33:15we said you can move to court and get an
1:33:17order of stay of execution pending
1:33:18appeal, where you want the execution to
1:33:20be stopped as you appeal. Why? Because
1:33:24you have said that your appeal will not
1:33:27automatically stay execution. You have
1:33:29to go to court separately and stay
1:33:31execution.
1:33:33Are we together? So, that is what we
1:33:35have said. We looked at order 42, rule
1:33:37six and rule five to be, which we shall
1:33:39be looking at when we start the Court of
1:33:40Appeal rules.
1:33:42And uh for purposes of
1:33:44uh the stay of execution. Also, we have
1:33:46said in terms of procedure that we have
1:33:48the Civil Procedure Rules that will
1:33:50apply to the appeals to the High Court.
1:33:52And then appeals to the Court of Appeal
1:33:54will be uh guided by the Court of
1:33:57Appeal, the Court of Appeal Rules. Okay?
1:34:01We have gone again and talked about the
1:34:03appeals to the High Court, which are the
1:34:04first appeals. The appeals to the High
1:34:06Court, we have said that if you are
1:34:08appealing to the High Court, then of
1:34:10course you will need uh to file a
1:34:13memorandum of appeal uh together with
1:34:16the record of appeal within within 30
1:34:18days. Within 30 days, you have to
1:34:21uh file your memorandum of appeal and
1:34:23the record of appeal. So, we have looked
1:34:25at what a memorandum of appeal looks
1:34:27like, which is still again on your
1:34:29screen. And we've said it contains the
1:34:32grounds of appeal together with the
1:34:34prayers or the remedies you're seeking
1:34:36from from the court. It must be dated,
1:34:38it must be signed.
1:34:40Okay? Now, this document is accompanied
1:34:43by It is accompanied by what we're
1:34:45calling uh what we're calling
1:34:48um
1:34:48record of appeal. So, a record of appeal
1:34:51will contain the following information.
1:34:54Let me just um
1:34:57project there.
1:34:59Uh record of appeal.
1:35:03Bring my screen up.
1:35:05So, every document, remember every
1:35:09document, every document
1:35:13that is uh
1:35:16rule 13.
1:35:21I hope you can see my screen.
1:35:25There.
1:35:26Rule 13.
1:35:28Uh okay, I'll bring that up again.
1:35:49All right. So, a record of appeal is
1:35:51just a collection of all the documents
1:35:54that were relied on during trial.
1:35:57Okay?
1:35:58So, again, um
1:36:02uh when you look at um 13 four,
1:36:05before allowing an appeal to go for
1:36:07hearing, the judge shall be satisfied
1:36:10that the following documents are on the
1:36:12court record and that such of them are
1:36:15not in possession of either party, uh
1:36:18have been served on that party. That is
1:36:20to say, the memorandum of appeal,
1:36:22okay? The pleadings. The record of
1:36:24appeal will contain these following:
1:36:26memorandum of appeal, uh the pleadings
1:36:28that were relied on during trial, the
1:36:31notes of the trial magistrate,
1:36:34the transcripts,
1:36:35uh or any electronic recording of those
1:36:39proceedings, the affidavits, the maps,
1:36:42every document, the judgment, the copy
1:36:45of the order, the ruling, the decree,
1:36:47all the affidavits, everything.
1:36:50Okay? That were used in the previous
1:36:54uh the previous trial, the trial that
1:36:55you're appealing against. All that will
1:36:57be collated as the record of appeal.
1:37:00Now, record of appeal is not really
1:37:02drafted. You don't draft a record of
1:37:04appeal. You only prepare a record of
1:37:06appeal, which is a collection of
1:37:08documents. You collect all these
1:37:09documents, uh you
1:37:12print them, you merge them all together,
1:37:15and then you uh you paginate them.
1:37:19You you paginate. You paginate.
1:37:21Pagination simply means you give them a
1:37:23uh once you combine all of them, you
1:37:25give them
1:37:26uh dates. Sorry, not dates, but page
1:37:28numbers.
1:37:30So, that if you are making reference to
1:37:32document on page 10, of course you'll
1:37:34prepare an index, document on page 10,
1:37:37um
1:37:40Normally, this is how it works. So, once
1:37:42you prepare the record of appeal, you'll
1:37:44prepare an index. So, an index is what
1:37:47will show the magistrate or the judge
1:37:50that this document is on this page. So,
1:37:52assuming that you have all the documents
1:37:54that are in the file and there are total
1:37:56of 50 pages or maybe 100 pages.
1:38:00Okay? So, in your index, you'll say that
1:38:03the first document maybe is the plaint.
1:38:06Okay? So, the plaint is from page one to
1:38:09page 10. So, page one to page 10,
1:38:12plaint. And then we have defense, page
1:38:1411 to page 15. And then we have
1:38:17supporting affidavit, page this to page
1:38:19this. You get what I'm saying? So, that
1:38:21is the index. So, that if the court is
1:38:22looking for the plaint, the court knows
1:38:24that the plaint is from page one to page
1:38:2610. So, that is just for practice.
1:38:28You'll see that in practice. But for
1:38:30purposes of your Kenya School of Law or
1:38:32the CLE exams, you just need to
1:38:34understand that the documents that will
1:38:37go into the record of appeal are these
1:38:40documents that that are on the screen.
1:38:42So, you just collect them. Sometimes the
1:38:44examiner will ask you to list the
1:38:46documents
1:38:47or to write
1:38:49uh the
1:38:51the documents that will form part of the
1:38:53record of appeal. Sometimes they'll tell
1:38:54you to prepare the record of appeal. So,
1:38:56in that instance, you just list those
1:38:57documents as indicated in the question.
1:39:01So, copies of all pleadings, affidavit,
1:39:03copies of the judgment, copies of the
1:39:05order, any decree, any ruling,
1:39:08affidavits, documents, maps, anything.
1:39:14Those will form part of I will form part
1:39:17of
1:39:18the record of appeal. So, the memorandum
1:39:21of appeal together with the record of
1:39:23appeal must be filed within within 30
1:39:27days. If you don't file them within 30
1:39:28days, then you are out of time and then
1:39:31of course you will need to request leave
1:39:33from court for you to file them out of
1:39:35time.
1:39:37Are we together?
1:39:54All right, Hussein.
1:39:57Um yes, Professor. Thank you. I just
1:39:59wanted to ask
1:40:01for the memorandum of appeal today.
1:40:03Do you include it as a part of the index
1:40:07or
1:40:08the record of appeal? As well as filing
1:40:10separately with the memorandum of appeal
1:40:12or you just file it twice?
1:40:14>> And then the record of appeal is clean.
1:40:18No, no, no. It's not part of it's not
1:40:20part of the record of appeal.
1:40:23Uh it is not part of the record of
1:40:24appeal. Remember that this this part is
1:40:26simply saying uh that this document
1:40:29should already been served upon all the
1:40:31parties must have the following
1:40:33document. The memorandum of appeal will
1:40:35be served together with the record of
1:40:36appeal.
1:40:38Are we together?
1:40:41Yes.
1:40:45All right.
1:41:00Kamboni, yes.
1:41:02Yeah, definitely I will possibly ask
1:41:06that uh maybe you contrast
1:41:09with
1:41:10what happens in a criminal
1:41:13uh
1:41:14litigation
1:41:16whenever we are doing the same process
1:41:18of appeal
1:41:19uh in
1:41:21to the to the High Court.
1:41:25How similar or different it is. I don't
1:41:27know I don't know why you're asking that
1:41:29question, but that is a very clever way
1:41:31of cramming.
1:41:32And as you know, I don't encourage
1:41:34crammists.
1:41:36Why do you want to cram? Why do you want
1:41:38to cram in a criminal matter?
1:41:42Or is that the best way to understand?
1:41:44If that is the best way to understand
1:41:46it, then just know that in criminal we
1:41:48don't have a record of appeal and in
1:41:50criminal we appeal within 14 days. We
1:41:53just need the memorandum so the petition
1:41:55of appeal, which is the same thing as
1:41:57the memorandum of appeal. The only
1:41:58difference is the name.
1:42:00Um
1:42:01and then you file it together with a
1:42:03copy of the judgment. So, in criminal we
1:42:06don't prepare record of appeal. And why
1:42:08is that? Because remember that the
1:42:10accused person is being given the
1:42:11easiest of time. We must give the
1:42:13accused person a very easy time. Are we
1:42:16together? And because you're giving the
1:42:18accused person an easy time, we don't
1:42:20want okay? We don't want to waste his
1:42:24time and have him all prepare record of
1:42:26appeal. No, no, no. We don't want that.
1:42:29So, we'll tell him, "My friend, just
1:42:31prepare a petition of appeal and bring
1:42:34it together with
1:42:35bring it together with uh
1:42:38uh copy of the judgment you are
1:42:40appealing against." That is all we
1:42:42require from this person in criminal
1:42:44because
1:42:45Article 50 provides
1:42:47a lot of things that are supposed to be
1:42:49done to the accused person to make his
1:42:52life easier.
1:42:56You get what I'm saying?
1:42:58Yes, yes.
1:43:04All right.
1:43:05That is Kamboni. Any other question?
1:43:24All right.
1:43:25Guys, do we feel like we have done
1:43:28something up to that point in as far as
1:43:32uh appeals are concerned? I want us to
1:43:35finish the discussion on appeals with
1:43:37the Court of Appeal uh in the next
1:43:40class. We shall be preparing
1:43:43notice of appeal
1:43:44uh and then we shall prepare memorandum
1:43:47of appeal and attach it together with
1:43:49the record of appeal. And the time
1:43:52uh is 14 days and then 60 days.
1:43:57All right. Any question, Augustine
1:43:59Manyonyi?
1:44:05Thank you, Counsel. Uh
1:44:07So, so
1:44:09in an exam situation, you've prepared a
1:44:11memorandum of appeal.
1:44:14What do you indicate under the record of
1:44:16appeal rather than those so many details
1:44:20under order 42?
1:44:21>> No.
1:44:22No, remember memorandum of appeal is the
1:44:26is the pleading. It is not accompanied
1:44:28by anything in terms of affidavit and
1:44:30all what. The whatever follows it, a
1:44:33record of appeal is just are just
1:44:34documents. They're not drafted.
1:44:37So, the examiner will only want you to
1:44:39draft one thing, which is the memorandum
1:44:41of appeal. However, the examiner might
1:44:45also ask you the examiner might also ask
1:44:48you to proceed and to proceed and name
1:44:51or list prepare a list of documents that
1:44:53will go into the record of appeal.
1:44:57Okay?
1:44:57>> Thank you.
1:44:58>> Now, also if you're told to prepare the
1:45:00record of appeal in an exam, which is
1:45:01rare, you just indicate the caption of
1:45:04the case, the parties record of appeal
1:45:06and then you list all the documents that
1:45:09will go into that record of appeal.
1:45:16Well guided. Thank you.
1:45:21All right.
1:45:34Any other question?
1:45:44All right, that being the case,
1:45:46I am obliged to
1:45:49uh of course adjourn the class.
1:45:52Uh today is Monday, so
1:45:55I'm expecting us to have a good week
1:45:57ahead.
1:45:59Please ask for this recording in good
1:46:01time
1:46:02uh so that uh
1:46:05we are able to
1:46:07uh we are able to
1:46:11uh do other things tomorrow. I'll see
1:46:13you guys tomorrow for
1:46:16uh what do you call
1:46:18criminal litigation.
1:46:20Uh we're finishing up finishing up on um
1:46:26sentencing
1:46:27so that we start on revision and appeals
1:46:32as well.
1:46:36All right.
1:46:39Bye and have a good night.
1:46:47Night.
1:46:49Bye.
1:46:51Bye.

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