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B R N 13 CIVIL LITIGATION 2 — Transcript

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0:02uh when it is civil we expect to engage
0:06uh in civil discussions and civil
0:08litigation
0:10and everything else concerning
0:13uh this thing called civil.
0:16Now with that in mind we have been
0:19discussing
0:20the question to do with appeals. Uh
0:22we've discussed appeals. So I want us to
0:25take a few questions, quick questions on
0:29appeals.
0:31Something that we didn't mention in the
0:33last class. Uh please, this is the time
0:37to uh to ask.
0:48Okay, looks like we are on the same
0:51page. So I would not insist
0:54I would not insist but round us start.
0:56Now
0:58in the last class we introduced order 42
1:03and uh under the appeals we talked about
1:07the first thing which is the right of
1:09appeal. The right of appeal is very
1:11important for you to understand the
1:13right of appeal. uh because when we are
1:17making an application to strike out
1:19appeal, one of the grounds we are
1:21relying on is that that appeal is
1:23incompetent
1:24uh or that appeal is not that order is
1:27not one that is appealable as of right
1:29or without leave of court. Okay. So
1:31under the right of appeal we said that
1:34we have two categories of orders. Okay.
1:38And the first one are orders that are
1:40listed under order 43. And these are
1:42orders that you can appeal as of right.
1:45There are orders that you can appeal as
1:46of as of right. And then of course we
1:49have those orders that you cannot appeal
1:51as of right. And anytime you want to
1:53appeal them you must of course you must
1:55of course seek leave of court. Okay. And
1:58that is something we discussed. The next
2:00thing that we also discussed was the
2:02question to do with the timelines.
2:05uh there's something to do with
2:06timelines and we said that you need to
2:09appeal within the specific timelines and
2:12we explained the timelines and we're
2:13still going to explain the timelines
2:14today. Um but remember the question of
2:18timelines took us to the next discussion
2:20which was the leave of uh leave to
2:22appeal and we said at any instance where
2:25you need leave to appeal there are
2:27usually two reasons why you need leave.
2:29The first one is because you're
2:31appealing out of time and therefore you
2:33are asking the court leave to appeal out
2:35of time. And then the second one is
2:37where you're appealing an order that is
2:39not appealable as of right subject to
2:41order 43. That is when you make an
2:44application for you make an application
2:46for leave to appeal. So an application
2:49for leave to appeal uh is usually sought
2:52in two instances and there are two
2:54grounds. The first instance is you're
2:56appealing out of time. And the second
2:58instance is you want to seek leave to
3:00appeal an order that is ordinarily not
3:03appealable as of right. Okay. And what
3:06are the grounds we're talking about? The
3:07first ground is that you have an
3:09arguable appeal. That your appeal is so
3:12good that you're not supposed to be
3:13locked out from appealing. Number two
3:16that unless you're given unless you're
3:18granted the leave to appeal then you are
3:20likely to suffer some substantial loss
3:23or damage. Okay, or damages.
3:27Okay, that is the leave to appeal. Now
3:30after that we move straight into the
3:33discussion of the appate jurisdiction.
3:36Now in terms of the appate jurisdiction,
3:39this is an instance where we said that
3:41there are certain codes that have
3:43appellet jurisdiction. Okay. And we
3:46explained in this class and I'm saying
3:48it right now that the appellet court is
3:50not the code of appeal only. The
3:53appellet court is a court that has the
3:54jurisdiction to entertain appeals either
3:58for the first time or the second the
4:00second appeal. Are we together? Now we
4:03talked about the first appeals and we
4:05said first appeals will come from the
4:08magistrate court or the subordinate
4:09courts straight to the high court. That
4:12is a first appeal. You appeal for the
4:13first time to the high court and then it
4:15is a second appeal if you are appealing
4:17the same decision to the court of
4:19appeal. So first second and we said if
4:22it is first you are allowed to make
4:25arguments as of questions of law and
4:28questions of fact. Okay. And we said
4:31that if it is a second appeal, it is
4:35only a question of a question of um a
4:39question of law. Are we together? That
4:41was a discussion that we had in the
4:44previous class. Now after that we went
4:47and talked about the appeal to the high
4:50court. Okay, appeals to the high court.
4:53Now I give an assignment. I give an
4:55assignment before we go to the appeals
4:57to the high court. I gave an assignment
4:58in the last class and I said that go and
5:02understand the appate jurisdiction okay
5:05from the high court. We have said the
5:07high court has the mandate to entertain
5:09appeals from the subordinate courts and
5:11the tribunals. Number two is the court
5:13of appeal. The court of appeal also
5:15enjoys
5:17a very wide discretion to entertain
5:20appeals either second appeals from the
5:23tribunals or the supported courts or
5:25first appeals from the high court. And
5:28then we talked about the question to do
5:30with uh to do with the Supreme Court and
5:32we said that you can only appeal um to
5:36the Supreme Court under very three clear
5:39circumstances. Okay, three clear
5:41circumstances. The first one uh is when
5:45that matter is a matter of national
5:48great importance. It's a matter of
5:51national importance. So it means the
5:53question that you want to appeal is a
5:55matter that is of importance to the
5:57general public and it has been certified
6:00as sorry by the court of appeal as a
6:03matter of great public importance and
6:06also we said that in the instance where
6:08that matter touches on the application
6:11and interpretation of the constitution
6:13then again you uh you appeal to the
6:17supreme court but of course with
6:18certification from the court of appeal.
6:20Lastly, I mentioned in this class and
6:22I'm saying it again and we all discussed
6:25and we agreed that in very special
6:27circumstances which is not part of the
6:29civil procedure but in very special
6:31circumstances where a judge is being
6:32removed that same judge can can appeal
6:35up to the Supreme Court. Okay, we went
6:39and talked about the appeals to the high
6:41court. Now under the appeals of the high
6:43court, we talked about the documents, we
6:46talked about the grounds and we talked
6:48about the timelines.
6:51Guys,
6:54are you with me?
7:00>> Yes.
7:06>> Are you
7:16Yes, we are talking.
7:24>> All right. So, uh the question is uh
7:29what are the documents and the
7:33timelines?
7:37As I prepare to bring my screen up.
7:56Oh my goodness,
8:06guys. somebody.
8:16Is it that we don't remember anything
8:20or why are you guys silent again?
8:39here.
8:43Okay. Am I being heard?
8:50>> Yes, we can hear you, but there's a lot
8:52of background noise.
8:58>> What do you mean? Somebody confirm if
9:00there's a lot of background noise on my
9:02end? I don't think so.
9:06the internal
9:10>> a lot.
9:13>> Yes.
9:17>> We don't have any background noise.
9:21>> I don't think I do have background
9:22noise. Can I need like five people to
9:25give me a confirmation?
9:28So, next person, can you hear?
9:30>> There's no background noise. I can't
9:32hear any.
9:42>> There's a lot of noise.
9:45>> Like someone is opening the door and
9:47closing.
9:53>> There's what?
10:05I'm I'm honest I'm honestly not very
10:07sure about what you guys are talking
10:08about. There's no alarm in my
10:11background. But uh
10:13uh let's try let me try to
10:17refresh again. Give me one second.
11:44Somebody confirm.
11:56I can hear you now.
12:01>> There's still a lot of noise.
12:04is the world.
12:20Just give me one second again.
13:10Where?
14:12Hello guys. And now is it better?
14:18>> Yes, it is.
14:21>> Somebody else confirm.
14:24>> Yes. Yes.
14:26>> Yes.
14:27>> All right. And uh and now is good.
14:34>> Okay.
14:35>> All right.
14:36So back to my question.
14:38>> So my question was somebody tell us uh
14:41what are the documents we need to
14:43prepare and the timelines when we are
14:46going to the high court for an appeal?
14:49What documents are we looking at?
15:02Yes.
15:05Uh-huh. Let's start from Zura.
15:17>> The timelines. I need all the documents
15:20and the timelines.
15:22The documents and the timelines.
15:24>> Yeah.
15:26>> Uh-huh.
15:26>> The timeline
15:2830 days. Within 30 days.
15:31>> What are they supposed to do within 30
15:33days?
15:35document. Document
15:38the document. Okay.
15:44>> And Okay. Uh, sorry. Can I can I please
15:48um let me let someone else answer the
15:50question cuz I'm so sorry.
15:54I'm a little bit fuzzy right now.
15:58>> All right. Uh-huh. Let's go to Usain.
16:01Hussein give us the timelines and the
16:02documents so that we move on to
16:04something else.
16:06>> Yes. They will file memorandum of appeal
16:09accompanied by record of appeal within
16:1230 days from the date of uh stay of
16:15execution is honorable.
16:18>> Well, who who taught you that? And the
16:23one who taught you that one within 30
16:25days after state of execution. Did I say
16:27that?
16:30Surely you're saying
16:34Uh-huh. correct yourself.
16:41Saying
16:42>> yes.
16:45>> Give me the timelines. Uhhuh. What are
16:47the timelines of appeal?
16:56>> Come again.
17:00cuz I I think I think we might have
17:02talked about some 30 days. I'm not sure
17:05from when
17:10from a judgment or
17:14>> I don't want you to think. I want to be
17:15very sure. Samuel.
17:19>> Yeah. Thank you. It is 30 days from the
17:22date the order is given. The order we
17:24are appealing.
17:25>> Yes. So 30 days from the date of the
17:29order. So within 30 days uh from the
17:31date you receive the order. It doesn't
17:33matter whether there's state of
17:34execution or not. Within 30 days you are
17:36supposed to file. You're supposed to
17:38file your appeal. And how do you appeal?
17:40You appeal by filing a memorandum of
17:43appeal which is uh of course
17:46accompanied by um a record of appeal.
17:50And we have seen that a regular appeal
17:52is just a collection of uh collection of
17:54all the documents that were used or that
17:57were filed in the trial or during the
17:59trial of that matter that becomes uh
18:02that becomes the appeal. So within 30
18:05days you have uh the option of
18:08appealing. Uh if you want to appeal or
18:10that order is appealable as all right
18:12you will proceed and appeal to the high
18:15court by filing your memorandum of
18:17appeal
18:19and the record of appeal.
18:21Okay. Memorandum of appeal and the
18:24record of appeal. Are we together now?
18:28We said it is 30 days from the date the
18:30order is the order is issued. 30 days
18:33from the date the order is issued or 30
18:36days from the date that you given leave.
18:38If you go to court to apply for leave
18:40then 30 days from the day you you
18:42receive that leave of court to appeal.
18:44That is clear. So I don't know whether
18:46somebody has a question and before
18:49before we close that discussion I want
18:52us to go to my screen right now
18:55and uh
18:59uh see what we have there.
19:03I just just proceed and draft it
19:05properly.
19:09Uh we just going to proceed to draft it
19:11properly there. I hope you can see my
19:14screen.
19:16Five.
19:27Okay. So,
19:30like we said
19:32uh in the next in the last class, you
19:34just need to prepare a memorandum of
19:35appeal just like you can see it on the
19:37screen. Okay. So, we have the Republic
19:39of Kenya. This is what we drafted in the
19:41last class. uh we have the memorandum of
19:43appeal which is the same thing you can
19:45see on your screen. So we have the
19:47republic of Kenya in the high court
19:49because you're appealing to the high
19:50court and then of course the civil
19:52appeal that you have the parties the
19:54appealance and the respondent and then
19:56you have the caption there as the
19:58memorandum of appeal and then you have
20:00the introductory uh introductory
20:03paragraph or statement which indicates
20:06that your client or the appalant is not
20:09satisfied with the order of the court
20:11dated that day and therefore they appeal
20:14against the sed uh to
20:18uh the high court.
20:21Are we together?
20:24So what do you say the appalant not
20:26being satisfied by the judgment of the
20:28honorable
20:30>> maybe senated magistrate if it is
20:33>> you have to indicate which court you are
20:35not happy with it decision. So if it is
20:38the SPM uh or SRM um if it is whichever
20:44but that must be said in the question.
20:46If it is a judge in the high court it is
20:48not being satisfied by the order or the
20:52decision of
20:54the judge the magistrate the resident
20:57magistrate depending on who delivered
20:59the judgment. Of course you have to give
21:00us the date. You hereby appeals
21:04uh to this court against the whole of
21:08the state. Let's make it simple.
21:14So against
21:18level
21:21said
21:24judgment
21:31on the follow sorry
21:38the following rounds.
21:43So what are your grounds? So your
21:46grounds is at the the magicet add in law
21:49and in fact let me just highlight that
21:52quickly. The maget adding law and in
21:55fact
22:02okay and then um again you can still you
22:06don't have to use very creative words.
22:09You don't have to use very creative
22:11words. uh you could just say the
22:13magistrate or the judge add in law and
22:16in fact. So for instance let's let's
22:19create an entire
22:21let's create an entire scenario so that
22:23you understand. So assuming that your
22:26client the appalant was not allowed to
22:29cross-examine the respondent. So you
22:31simply come and say that the magistrate
22:33add in law and in fact by
22:37refusing
22:40or by denying
22:43the appalent
22:48uh
22:53to cross
22:58examine
23:01the respondent.
23:05Okay, that is your first ground. So
23:07remember that each and every case, each
23:09and every case is going to have its own
23:12peculiar grounds. Okay, that your client
23:16was denied the opportunity to produce
23:18the evidence. Okay, for instance, you
23:20will be seeing that
23:27the magistrate
23:38and in fact
23:40I
23:42is missing
23:46the key evidence
23:49or the key documents
23:51uh are used
23:54by the appalant
23:59you know so the magistrate add in law
24:02and in fact so why are we saying that
24:05because if we are appealing to the high
24:07court we are allowed to appeal on a
24:10question of law and a question of fact
24:12that is why we are saying the magistrate
24:14add in law and in fact they add in law
24:17and and in fact so There could be as
24:19many grounds as possible. Okay? And then
24:22remember that this here is a pleading.
24:27So as with every pleading once you are
24:30done with your grounds then you have to
24:32give us your prayer. So what are you
24:34praying for that?
24:38Sorry let's finish the statement there.
24:42Reasons were for the appulant.
24:49Sorry
24:56place
24:58as follows.
25:01Number one,
25:04the appeal
25:06be allowed.
25:09Number two, cost of the appeal.
25:14Okay. So, you could have a lot of
25:17prayers. You don't have to just just
25:18indicate the
25:23sorry.
25:25Yes, you don't have to have just two
25:27prayers. You can have as many. But of
25:28course, when you indicate that the
25:30appeal be allowed, that is a sufficient
25:32prayer. Uh because your appeal will be
25:35will be allowed. The same thing. So
25:36drawn and filed by to be served upon.
25:38From my screen you can clearly see that
25:40it is just a two a one page document. It
25:44is just a onepage document. So a memor
25:46of appeal is very easy. It is just the
25:48indication that you are appealing to the
25:51whatever court you're appealing. You're
25:52giving your grounds and you're giving
25:53your prayers. It is dated and then of
25:56course it must have a place for
25:57signature drawn and file by to be served
25:59upon. Now this document is not
26:02accompanied by any affidavit. There is
26:05no affidavit that shall accompany the
26:08memorandum of appeal. The only document
26:10that accompanies the memorandum of
26:11appeal is what we calling uh is calling
26:15the record of appeal which is just a
26:17collection of all the documents that
26:18were initially produced during the
26:21trial.
26:23Are we together?
26:29Yes, we are.
26:36All right. So, is there any question on
26:39the appeals to the high court? I've made
26:42it very clear that when you are
26:44appealing to the high court, it is a
26:45memorandum of appeal and the record of
26:47appeal within 30 days. If it means if 30
26:51days are insufficient or for if you're
26:54not able to appeal within 30 days then
26:57you have the right to proceed and to
27:00proceed and seek leave from court to
27:02appeal out of time. You make an
27:03application for leave to appeal out of
27:06out of time. And also we say that
27:07sometimes as you appeal or as you seek
27:10leave, you might also want the court to
27:12grant you stay of execution so that this
27:15judgment that you want to appeal against
27:17is not executed against you or your
27:20client. So that was appeals to the high
27:22court. Any question on appeals to the
27:25high court? Any questions on appeals to
27:28the high court? Yes, Cynthia.
27:32Where does the notice of appeal come in?
27:37>> Where did you read it from?
27:41>> It was mentioned in class.
27:46>> Which class?
27:52>> Um physical class. Physical class. Class
27:54A.
27:56>> You were told that.
27:57>> Yeah.
27:58>> That is our that is our next discussion.
28:01We are going to go there. We're heading
28:03there right away. So just uh mark time
28:08mark time. So notice of appeal is not
28:10filed in the high court. Uh when you're
28:12appealing to the high court, but it is
28:13filed in the high court if you're
28:14appealing to the court of appeal.
28:17I'm coming there. That is our next
28:18discussion. Yes. Audi.
28:22>> My question is when you when you asking
28:25for the state, do you do it in the do
28:27you make an application or how do you go
28:29about it?
28:33What do you mean? Is there a way you can
28:35get something without making an
28:36application? Maybe you can tell us.
28:38>> Okay.
28:38>> Do you just sit there?
28:40>> My question.
28:41>> What is your question? Cuz your question
28:42is not clear. Uhhuh.
28:44>> In the memorandum of appeal, you also
28:46include the stay in it or it's a
28:49different
28:49>> Do you can you see my screen?
28:52>> I can see your screen.
28:54>> Do you see anything there like stay?
28:57>> No.
29:00How would you pray? How would you apply
29:02for uh a stay in in a memorable appeal?
29:07We discussed stay in this class. I would
29:08you in that class?
29:09>> Yeah. Yeah.
29:10>> Execution.
29:12>> When there's an application that I read
29:14somebody was asking for time to appeal
29:16was asking for to appeal out of time and
29:19they're also asking for stay in the same
29:21in the same memorandum of appeal. So I
29:23was really wondering is that even
29:25allowed? reading those things.
29:27>> There's no application like that.
29:29There's no pleading like that.
29:30>> Okay. Okay.
29:32>> I can give you time to give me that
29:34document. You can never find it. There's
29:36nobody that can ever pray for a
29:38temporary order within a pleading.
29:40Memorandum of appeal is a pleading. You
29:42can pray for leave to appeal and stay of
29:44execution in the same application. But
29:47you cannot pray for the two of them in
29:49the same memorandum of appeal because
29:50you cannot pray for it. It is an interim
29:53order. This is a is a memorandum of
29:55appeal. It is only supposed to outline
29:58two things. Memorandum of appeal will
30:00only have two things. The first one is
30:02the grounds of appeal. Why are you
30:05appealing? Number two, what are the
30:08reasons? So what are the what are the
30:09prayers that you want? Full stop.
30:12Anything that you want, you have to make
30:14an application. We talked about st
30:15execution and application for leave in
30:18the last class. Audi and in that class.
30:19What did we say? How do you seek? How do
30:21you approach the code for leave?
30:27You make an application
30:30>> and how do you how do you uh approach
30:32the code for stay?
30:35>> You make an application too.
30:37>> Which which document
30:44is a motion?
30:46>> Now what if you want both? What do you
30:48do?
30:50You want to stay but you want to leave
30:52to appeal. What do you do?
30:56>> You ask for both in the same. Oh, okay.
31:00You first seek leave then once it's
31:02granted then
31:04>> what do you do? What do you What do you
31:06do?
31:09And say exactly what I taught. Don't say
31:11anything that I didn't teach. So your
31:14client has realized that they are out of
31:16time but also they are being threatened
31:18by a decree. What do they do? What do
31:20you advise them to do? Proceed.
31:26You advise them to
31:33>> make an application in court.
31:37Okay. Ask your question again.
31:39>> I'm not asking any question again.
31:41Please answer the question.
31:43Time is not on our side. What do you
31:45advise your client to do?
31:48Mhm.
31:50Proceed.
31:58Do you want more time to think about it
31:59as we come as we go to Mugo Mary?
32:03>> Yeah, it's okay.
32:04>> We're coming back to you Audi right now.
32:07M answer ask your question.
32:11My first one is the first paragraph you
32:14said that uh not being satisfied by the
32:17judgment of the honorable senior
32:20resident magistrate in the above suit.
32:23What is the import of that saying in the
32:26above suit? Does it mean that the number
32:31>> there's no import? You can decide to
32:34ignore it or not ignore it.
32:38Okay. Above suit simply means the suit
32:40between Joe Blogs and Jane Doe. That is
32:44above suit.
32:46So which suit? Is the suit between those
32:49two parties? The two parties that you
32:50can see there, the upland and the
32:52respondent. So it means you're not
32:55satisfied with the decision of the
32:57magistrate uh in that suit and you give
33:02the date if you given the date which is
33:05dated this day. But of course in your
33:08record of appeal you will have a copy of
33:10that judgment. So the court will just
33:11see okay this is a judgment that you're
33:13not satisfied satisfied with. So there's
33:16not nothing really
33:19um that is important in that specific
33:22paragraph. Nothing. You can ignore all
33:23of it
33:25but just indicate that you are not
33:28satisfied with the judgment of uh the
33:31and you don't have to say the honorable
33:32senior resist. No, you only talked about
33:36what you've been given in the question.
33:38For instance, if the question tells you
33:39the magistrate, just say that the
33:42appalent
33:44not being satisfied
33:46with the judgment of the magistrate
33:50dated this day hereby appeals against
33:53the whole of the state judgment to this
33:54court on the following grounds. Full
33:57stop. You don't have to say the
33:59honorable senior resident mag. No, it
34:01depends on what the questioner has told.
34:04If you're told it is the principal
34:06magistrate, the principal magistrate,
34:08the chief magistrate, chief, if this
34:09just the magistrate, the magistrate
34:11alone. So there's nothing really
34:14important about um some of the docu some
34:17of the things that I've said there.
34:19They're just to purposing that document
34:21up. Are we together?
34:26Yes.
34:28>> All right. Audi
34:31question
34:39Audi you can hear us please uh proceed
34:48>> you you make an application to court
34:52taking
34:52>> what are you answering what is the
34:55question that you're answering
34:58>> my client has just told me that they're
35:01being threatened.
35:04>> So they asked you not what to do.
35:07>> Threatened to do or to be killed. Audi,
35:09can you just
35:12get serious and give me the answer
35:14quickly? We need to go. Uh-huh. What is
35:16the question and what is the answer? So
35:18that everybody can understand.
35:21So that if that question is said because
35:22it will be said uh you are able to
35:25maneuver through it and remember exactly
35:28what I said. So tell me what is the
35:30question?
35:32What has your client done?
35:39>> Time time.
35:44Your client My client has told me that
35:46they're being threatened over an
35:48execution.
35:51Okay,
35:58>> don't use the word threatened because
36:00now I said it lightly but don't use it.
36:04>> Okay,
36:17another word we are waiting for you.
36:33Audi's
36:36go to the next question please. So do I
36:39have any question? Do I have any
36:41question so that we can finish up and go
36:43to the appeals to the court of appeal.
36:46any other question on appealing to the
36:48high court and I'm asking that question
36:50so that you can look at my screen uh
36:52look at the memorandum of appeal in
36:55terms of how the memorandum of appeal is
36:57supposed to look like and I will go
36:59through it again once more one more time
37:01and I will explain the following things
37:02that whenever you are going to the court
37:05to the high court to appeal a decision
37:07it could be a ruling it could be an
37:09order or a decree or even a judgment
37:12then you first need to understand that
37:13you are going to the high court and
37:15therefore your caption will capture the
37:17the high court. Number two, you need to
37:19know that in preparing the memor of
37:21appeal, you're going to have parties
37:22there. The first person is the
37:24appealant, the person that is appealing
37:26and then that is your client and then
37:28you have the respondent. Are we
37:30together? And then you write the
37:31memorandum of appeal and then you tell
37:33us what decision you are appealing
37:36against and on what grounds. Okay? So
37:39like I've said in this class that the
37:41memorandum of appeal aside from the
37:42caption is supposed to contain two
37:44things. The first one are the sorry not
37:46the parties but the grounds of appeal.
37:48Why are you appealing? And in our
37:50question you can see that the magistrate
37:53had in law and in fact by denying the
37:56appalant the opportunity to
37:58cross-examine the respondent. Number two
38:00the magistrate add in law and in fact by
38:03dismissing the key documents that were
38:05used by the appalant.
38:08Are we together? And you could have so
38:10many grounds. For instance, even the
38:12magistrate add in law by maybe even
38:14granting a temporary injunction without
38:18the grounds being or without the
38:21conditions uh being met. So there's so
38:24many things you can you can appeal on.
38:27Remember it is both a question of law
38:29and a question of fact. Are you
38:31together? So if you are going to the
38:32high court, you are allowed to appeal on
38:34a question of both law and fact. So
38:37because you don't have the time to try
38:39and determine which one is law alone,
38:42which one is fact alone, you combine it
38:44by saying they add in law and in fact
38:48and then secondly
38:51must have the the prayers. What are you
38:54praying for? Reasons where for the
38:56appalant prays as follows. The first one
38:58is that the appeal be allowed and the
39:00cost of the appeal. Full stop. Now that
39:03is the memorandum of appeal. It is very
39:05simple. The prayers are usually
39:06constant. Every memorandum of appeal,
39:09the prayer is that the appeal be allowed
39:11because that is why you're appealing.
39:13The appeal be allowed. And then based on
39:15your question, you can now decipher uh
39:18the other prayers. Could be maybe the uh
39:21the respondent be ordered to pay this
39:23amount or the court order that this
39:25person leave this place. So there's so
39:27many things that you can pray for in
39:29terms of prayers, but one and two are
39:31sufficient. the appeal be allowed and
39:33the cost of the appeal. And then I've
39:36said that once you file and serve it
39:38within 30 days, it must be accompanied
39:40by the record of appeal. It must be
39:42accompanied by the record of appeal. But
39:45also don't forget I've said that the
39:47respondent is not supposed to file
39:49anything. The respondent will not file
39:52anything because when you are appealing,
39:55look at what you're saying. You are up
39:57saying in your grounds that the learned
39:59magistrate had in law that the
40:02magistrate had in law and in fact so it
40:04is your case against the magistrate or
40:07against the judge. Therefore the
40:09respondent will not file anything. It is
40:12not the respondent's case. The
40:13respondent already has already has a
40:15judgment in their favor and that
40:17judgment they have been given by by the
40:19court. So if you're not happy with that
40:20judgment you go against the court. So
40:23the respondent will only sometimes be
40:25filing we filing their submissions only.
40:29Are we together?
40:31>> Excuse me.
40:33>> The recording has stopped.
40:36>> Is it?
40:37>> Yes.
40:40>> The recording has not stopped. The class
40:42is still being recorded.
40:47>> Somebody confirm from your end.
40:52My class is being recorded for my
40:55>> It's recording.
40:58>> It's recording.
41:02>> Yeah, it's recording. So, I think um
41:05yes, the class is being recorded. So,
41:08you want to check check again.
41:11Yeah, it's being recorded. Sometimes it
41:13might not show on your side, but it's
41:14showing on my end that it's being
41:17recorded. There's a red dot there.
41:19Anyway, so I have explained why the
41:22appalant sorry the respondent in an
41:25appeal will not file any document except
41:27if they want they will file submissions.
41:30They will only file submissions. Are we
41:33together?
41:35That is the respondent. But also
41:36remember that the respondent might also
41:39bring a different application to strike
41:42out the appeal. For instance, if you are
41:44appealing out of time without leave,
41:47then we shall make an application to
41:49strike out your appeal. If you are
41:52appealing an order that is not
41:53appealable as of right, we shall move
41:56and strike out. Strike out that. If this
41:59matter is already resudic or subjudice,
42:02we shall move to court and strike that.
42:05If the court of appeal doesn't have
42:07jurisdiction or the high court doesn't
42:08have jurisdiction in that matter then of
42:10course we shall move to court and have
42:13that struck out and we are going to
42:15court through an application by the
42:18respondent and this application is
42:20seeking to is seeking to strike out to
42:22strike out the uh the appeal I don't
42:27know whether talana are we good now
42:30anyone with a question in as far as the
42:32appeals to the high court is concerned
42:33so that we can move to something
43:00All right. Do Sheila.
43:04>> Yes. Just for clarification, you have
43:06said that um when we are making the
43:09application for leave, it should be by
43:11the way of notice of motion. Then in the
43:13same application
43:15um we can also ask for the state of
43:18execution of the decree that was issued.
43:22>> What is your question? Are you
43:23clarifying that you're asking a
43:25question?
43:25>> I'm clarifying.
43:27>> So you don't have a qu you don't need an
43:29answer.
43:31>> Okay.
43:32When you say let me clarify, then you're
43:35clarifying. Okay. But when you say I
43:37have a question, then that question
43:39requires an answer from me. So are you
43:42clarifying or asking a question?
43:45>> Asking because this was in regards to
43:47what the other lady had you had asked I
43:52think.
43:53>> Okay. Proceed and ask the question now.
43:55>> Mhm.
43:59So um you have say that when we are
44:02making the um application for leave it
44:06shall be by notice of motion right and
44:09um
44:10>> all applications should be notice of
44:11motion unless otherwise
44:14>> okay so when we so is it in that same
44:18application that we still ask for the
44:20stay of execution
44:23>> give me a scenario and then I'll give
44:24you a concrete answer give me a scenario
44:29So
44:31>> Ni is please mute your microphone. Nuri
44:36>> okay proceed Sheila give me a scenario.
44:39>> Sorry let's say a decree has already
44:42been given against you
44:44>> that um you'll be
44:47>> that it will be affecting you if it
44:49continues like it's already continuing.
44:52So you want to um stop it first. What?
44:55What do you mean it continues? Continues
44:57going where? Where is it going?
45:01>> Okay. Like it will be detrimental to you
45:03if it's not paused.
45:06Like if it's not
45:08>> how how will it be detrimental? What is
45:10that? I want you to say it the way it's
45:11supposed to be.
45:13When you say it will be detrimental,
45:15what are we talking about here?
45:19In what cap in what sense?
45:22Essentially, what you're doing, you're
45:23trying to you're using complicated
45:25statements. I want you to just use a
45:27direct statement. What is happening?
45:29There's a decree and then there's a
45:31decree. Uh-huh.
45:34>> There's a decree.
45:36>> It's it's affecting you and you want to
45:41appeal
45:42>> and in the process.
45:44>> Yeah. You file a notice of motion for
45:48the for lead to to appeal. Then um
45:53you still want the court to Okay.
45:57>> You want to there's a there's an order
45:59against you. There's a decree that you
46:01want to appeal against. Uh-huh.
46:06So from there there's a there's a point
46:08a critical point you're losing there. I
46:10don't want you to lose it.
46:17Then you want then you apply for you
46:19make an application for leave to appeal.
46:24>> Why?
46:28>> Because uh you have been affected by the
46:31judgment like you feel.
46:32>> So is it is it that and this goes back
46:35to what I've just explained when I was
46:36starting the class. Is it that every
46:37time you uh every time you you have a
46:42decree against you, you'll go to court
46:43and get leave?
46:49>> No.
46:51>> So, uh in this instance, why you why you
46:54getting why you so what I'm telling you,
46:57can you give me a composed answer?
47:01Your question needs to be very clear
47:04and I can allow you to write it down and
47:07then ask it again because it needs to be
47:09very clear. Give me a specific instance
47:13that is
47:15Uh-huh. You want to try again?
47:24>> Um I'll rephrase my question later.
47:28Okay,
47:30that is what I want you guys to so sit
47:32down. Audi is still also refreshing her
47:35question. You're also still refreshing
47:37your question. So please please refresh
47:40it. When we get to something else, we
47:42will give you time to ask it again. So
47:44try and write write write a scenario
47:46down or create a scenario or if not uh
47:51there is a paper in 2018 I think it's
47:53July that has a very specific scenario
47:56to what you're asking. Okay. So I want
47:59you to have the picture because remember
48:01if you don't have the picture in your
48:03mind if you don't have the picture in
48:05your mind you will not you will not
48:07understand the idea. Okay. So let's do
48:10this. Let's put the idea first. Let's
48:13put the idea first. What is the idea?
48:17The idea is this that there is let me
48:20give a scenario now uh from that paper.
48:24You're being told in that paper that you
48:26have a client. This client of yours was
48:29sued. Okay. After they were sued, a
48:33decree was obtained. Judgment was issued
48:35in default. Okay. Judgment was issued in
48:38default. They were not available when
48:41judgment was issued. Okay. So after some
48:44time while you are just doing your
48:46research on Kenya law, you stumble upon
48:49this judgment and then you tell your
48:51client that hey there's a judgment and a
48:53decree that has been issued against you.
48:56Now your client has instructed you to
48:59proceed and appeal against against that
49:03uh specific order or decree. But you
49:05remember at that time you don't have the
49:08leave to appeal. Why? Because time has
49:11time has gone.
49:15Are we together?
49:19>> Yes.
49:22>> I want you to understand the scenario
49:23because this scenario is what is going
49:24to make you understand it. So you are
49:27making an application.
49:39Sorry. So I'm saying you are making an
49:41applic at this moment. Remember you are
49:44going to make an application for leave
49:46and I was when I was starting this class
49:48I mentioned that very well and I was
49:49expecting everyone to understand. Now I
49:52said there are only two scenarios where
49:54you'll be going to court for leave to
49:56appeal. The first one is when you are
49:58out of time like the scenario I've given
50:00you now you are out of time. The second
50:02one is when the order that you want to
50:05appeal is one that you can't appeal as
50:07of right. It means it is not an order
50:09that is appealable as of right. And I've
50:11explained this in the previous class and
50:13in this class and I've seen guys the
50:15right of appeal is not automatic in all
50:18instances.
50:20Some orders are not appealable. It means
50:22once the court has rendered its judgment
50:25or its ruling that is final. It is final
50:27and binding. Are we together? So it
50:30means if you have such an order you
50:33cannot go and appeal within 30 days
50:36automatically like that. you have to go
50:38and seek leave. However, in our scenario
50:42which I've given you there, we are
50:44presented with another
50:47issue. And what is that issue? That
50:49issue is that at the time you are
50:52contemplating to appeal there's already
50:54a decree. So you are going to court to
50:56seek leave to appeal but you cannot
50:58forget to also pray for to also pray for
51:01leave sorry to stay execution.
51:05>> Are we together? So then the question
51:08then is are you going to make
51:09applications twice, stay of execution
51:13and leave to appeal?
51:15Okay. Are we going to make them twice?
51:18No. All applications can be summed. You
51:21can have one application, one notice of
51:23motion that shall have 10 prayers.
51:29Are we together? So you can have one
51:32simple notice of motion and this notice
51:34of motion can have 30 prayers.
51:37Okay. You can pray for state of
51:39execution there to appeal Marva
51:42injunction pill
51:45attachment before judgment ars before
51:47judgment orders of commission. You can
51:49pray for all of them in one single
51:51document.
51:54Okay. So remember that applications are
51:57all similar and they all presented in
51:59one document. Why are we saying you can
52:02make applications all of them in one
52:04document? Because all applications are
52:07done in a notice of motion. So it will
52:08not make sense to have a notice of
52:10motion
52:12twice or three times. However, for
52:14pleadings, it is different. Pleadings
52:17are very specific and each pleading is
52:20prepared in a very special circumstance.
52:23So if it is a circumstance requiring a
52:25statement of claim, you cannot bring in
52:27a defense. If it is a circumstance
52:30requiring a plaint, you cannot bring in
52:32a petition. But when it comes to
52:35applications, all applications unless
52:37otherwise are notices of motion. So it
52:40means you can get one notice of motion.
52:43If a question presents you with three
52:46instances of applications, then all
52:48those applications you pray for them in
52:51one sitting. Are we together? But the
52:53key thing that need to take away from
52:55this class or from what I've just said
52:57right now is that whenever you are
52:58making an application
53:01for leave, you need to understand the
53:02grounds. Either you are late or you are
53:06not supposed to be appealing that order.
53:09Sheila and Audi,
53:11are we on the same page now?
53:15>> Yes, that's clear. Thank you.
53:20Welled
53:23is lastly and then you can move to uh
53:26rule 52B
53:31is NI
53:39H um well um I'm just inquiring there is
53:43uh one of the classes where you said if
53:46there is um if there is two prayers to
53:49make art at a goal more so when we're
53:52looking at the aspect of time then we
53:54can approach that with a certificate of
53:57agency
54:04>> I don't get the question what is the
54:05question
54:10>> the question is uh because you said we
54:12we can uh include a number we can we can
54:15include so many prayers or numerous
54:17prayers in the notice of motion
54:20Then how how does the certificate of
54:22agency come in or or we can approach
54:26them by either either one of them?
54:29>> What is a certificate of emergency? When
54:31do you do a certificate of emergency
54:38is when do you do a certificate of
54:39emergency even from
54:44Okay, that is your assignment. That is
54:46your assignment. You're going to answer
54:47it in the next break. So when we get to
54:51uh a stop which is in the next 5 minutes
54:56uh we're going to get that answer. So
54:58look around, ask around when do you do a
55:00certificate of emergency or what is a
55:02certificate of emergency. Now that being
55:04said, I want us to go and talk about the
55:07appeals to uh to the court of appeal.
55:10the appeals to the court of appeal. And
55:12I want us to start straight from rule
55:1452B uh of the court of appeal
55:19um rules.
55:22So I'm going to project my screen right
55:24there. So once we're done with the rule
55:2752B, we are coming back to Ismael.
55:32All right. So court of appeal. So what
55:36do you need to understand about the
55:38court of appeal? The first one is that
55:39the court of appeal is not entirely
55:42bound by the civil procedure rules. Why?
55:46Because the court of appeals will have
55:48this whatever you are seeing on the
55:50screen the court of appeal rules. Are
55:53you together? So remember that the civil
55:55procedure rules primarily applies to
55:58sorry they applies to the high court and
56:00the subordinate courts. When it comes to
56:03the court of appeal, the court of appeal
56:05shall rely on on the court of appeal
56:08rules. But remember that to some extent
56:11the court of appeal will still be
56:12relying on the civil procedure rules
56:15because it is still civil either way.
56:18Are we together? That is clear. Now the
56:22next thing you need to understand is
56:24that when you are going to the court of
56:25appeal, somebody's saying something.
56:31I say yes we are sorry.
56:34>> All right. So when we are going to the
56:36court of appeal there are certain things
56:38you need to understand. There are
56:40certain things you need to understand.
56:41The court of appeal is a little bit
56:42strict um in terms of its procedures and
56:45all that. So the first thing that we
56:48need to understand is that the court of
56:50appeal will have its own set of rules
56:52and that is what we call the court of
56:54appeal. The court of appeal rules. Now
56:57the moment you want to appeal to the
56:59court of appeal sometimes you may be
57:01required by the circumstances to seek
57:04stay of execution. Now if you are going
57:07to the high court you'll be seeking stay
57:09of execution subject to subject to order
57:1342 rule 6. However, when it comes to the
57:17court of appeal, when it comes to the
57:19court of appeal, you are going to go to
57:22the court of appeal to six day of
57:24execution using rule 52.
57:28Okay, rule 52B.
57:31So if in practice you hear somebody
57:33saying that we need a rule 52B it means
57:37we are simply uh we are simply seeking
57:39stay which is under rule 52B of the
57:43court of appeal rules. Are you together?
57:46And what is rule 52B says that in any
57:49civil proceedings where a notice of
57:52appeal has been lodged in accordance
57:54with rule 77, uh the court may of course
57:58order a state of execution, an
58:00injunction or a stay of any further
58:01proceedings on such terms as the court
58:04may think just.
58:07Are we together? But also remember that
58:10you appealing.
58:12Okay. Rule 52, subject to sub rule one,
58:16the institution of an appeal shall not
58:19operate to suspend any sentence or to
58:22stay execution, but the court may. It
58:26means the moment that you're appealing,
58:28the fact that you're appealing to the
58:29court of appeal doesn't mean doesn't
58:33mean that you are going to get you are
58:36going to get stay. You have to pray for
58:38say independently or separately. When
58:42you're appealing, you're filing the
58:43pleadings. In those pleadings, you
58:46cannot ask a temporary prayer such as
58:49the one for stay.
58:53Are we together? So, when you're going
58:56to the court of appeal, it is rule 52B
58:58of the court of appeal rules. Are we
59:02together? Court of appeal rules. Now you
59:05are presented with an instance again.
59:07You want to appeal to the court of
59:08appeal and you are out of time and
59:11there's a decree. What do you do?
59:14You want to appeal to the court of
59:16appeal. You are out of time or this
59:18order is not appealable as of right and
59:20there is a decree that has already been
59:23extracted against your client. What do
59:26you do? Yes, Audi.
59:35You make an application seeking stay of
59:38execution.
59:42You didn't hear my question. I will say
59:43it again. You want to appeal to the
59:46court of appeal. You are out of time or
59:48this order is not appealable of right
59:51and there's a decree that has been
59:53extracted against your client or your
59:55client has been served a decree. What do
59:57you do?
59:59You you you seek leave to appeal out of
1:00:02time.
1:00:03>> Hey, you need to give give me the
1:00:06process. Advise your client. Give me the
1:00:08process. What do I do?
1:00:15Cuz when you tell me to sick leave, what
1:00:17is that? What is what is the meaning of
1:00:18sick leave?
1:00:20So me as a client, what am I supposed to
1:00:22do? Do I just walk to court and tell the
1:00:25court, "Hey, I'm sorry. Give me leave.
1:00:28Can you give me a very elaborate answer
1:00:32better than that?
1:00:38>> Audi, please. Time is not on our side.
1:00:42>> What? Make an application to court.
1:00:45>> How do you make that application?
1:00:50>> By way of notice of motion.
1:00:53>> Application. How make it quick? Uh-huh.
1:00:58>> And the supporting affidavit explaining
1:01:00to court why you you
1:01:03you're seeking leave.
1:01:04>> You make you make an application and
1:01:06notice of motion. Uh-huh. Make an
1:01:08application in a notice of motion.
1:01:13Seeking leave to
1:01:21stop playing. Answer the question. I've
1:01:23just explained here are well guided. So
1:01:25you're well guided. Please guide me as
1:01:27well.
1:01:30I've explained it
1:01:33>> and you you say all your prayers in the
1:01:36notice of motion.
1:01:38>> Don't tell me that. Tell me exactly what
1:01:40I'm I'm your client. You can't tell your
1:01:42client. Go say all your prayers. I am
1:01:44your client. Please
1:01:45>> ask my client that we need to do an
1:01:47application to court asking for time.
1:01:51>> What application is this? A notice of
1:01:54motion application. Audi listen.
1:01:57>> Yes.
1:01:58>> You need to answer questions very
1:02:01clearly, elaborately and procedurally.
1:02:06When you are advising a client, these
1:02:08people are not advocates. You need to
1:02:11tell them what they need to do step by
1:02:14step.
1:02:17Okay? So, they you've been given the
1:02:18scenario. The scenario is you want to
1:02:22appeal to the court of appeal. This
1:02:24order is not appeal of right and most
1:02:27importantly there's a decree that has
1:02:29been exe I mean has been extracted
1:02:32against your client and the auctioneers
1:02:34have already been appointed what do you
1:02:37do in terms of the procedure you as the
1:02:40council are representing Japton in that
1:02:44scenario
1:02:53audi time is on our side. I expect you
1:02:55to speak quickly
1:02:58cuz we now gone back to exactly what
1:02:59I've already explained to you and
1:03:01Shayla. Now you're quiet.
1:03:06>> Can Shayla take over as I organize
1:03:08myself?
1:03:09>> There's nothing to reorganize. Can you
1:03:11answer the question?
1:03:15What is the question?
1:03:19What is the answer? So tell me what do
1:03:22you do in that circumstance? I've just
1:03:23explained it.
1:03:27I've just explained right now. So please
1:03:29can you answer the question?
1:03:37Make an application to court seeking him
1:03:41to appeal out of time.
1:03:44And you do this via a notice of motion
1:03:47application.
1:03:55That is what I've said. Anyway, Ismaile.
1:04:00Nori. Ismaile. Did you find what a
1:04:02certificate of agency is?
1:04:08>> Yes, I did.
1:04:09>> Yes, I did. Yes, I did.
1:04:13Sorry.
1:04:13>> So, what is what is the answer to your
1:04:15question?
1:04:19Well, let me uh William, let me uh
1:04:22rephrase that question first. Uh
1:04:24>> okay. The question was
1:04:28the the question was uh in the instance
1:04:31like you you had uh preferred it forth
1:04:34uh in the instance where there is um a
1:04:37st a stay you want a state of execution
1:04:42and you also want leave to appeal. But
1:04:45then you want this tail of execution
1:04:47because you because there is a decree
1:04:51that is yet to be executed and you're
1:04:55fearing that perhaps uh by the time the
1:04:58state of execution will be granted then
1:05:00the decree will already have been
1:05:01executed and then so uh I was asking uh
1:05:06instead of the notice of motion can't we
1:05:09approach that by a certificate of agency
1:05:12then with a notice of motion and
1:05:13supporting affidavit.
1:05:16But you're saying instead of a notice of
1:05:18motion, it means you want to remove.
1:05:19Anytime you say instead of, it means
1:05:22you're giving an alternative to that.
1:05:25So, are you removing a notice of motion?
1:05:30>> No. No, I am not removing the notice of
1:05:32motion.
1:05:34>> Mhm.
1:05:34>> What are you doing?
1:05:38um accompanying the notice of motion and
1:05:40the supporting affidavit with a
1:05:42certificate of urgency.
1:05:44>> And when do you do that?
1:05:48When when you when you are apprehensive
1:05:53that uh the exe the execution of uh the
1:05:58decree will cause you uh a loss that
1:06:02will be
1:06:05insufferable.
1:06:09>> No. What is assertive emergency? What is
1:06:12assertive emergency? Mhm.
1:06:14>> A document that enables the court to
1:06:17bring your matter or to attend to your
1:06:19matter with such urgency.
1:06:22>> Uhhuh. So when do you uh uh when do you
1:06:26make an application under certificate of
1:06:28agency?
1:06:34>> In the instance of uh execution of uh
1:06:36the decree.
1:06:38If if um executing the decree will cause
1:06:44an injustice.
1:06:46>> No.
1:06:48Certificate of agency. What is repeat
1:06:51that statement? Certificate of what?
1:06:56>> Agency.
1:06:57>> So repeat what you said now. without
1:06:59certificate. It is
1:07:10uh so it is a certificate of agency. So
1:07:13remove the agency. Remove the
1:07:15certificate. What do you remain with?
1:07:20>> You left with a a document.
1:07:24>> What do you mean document? And I've said
1:07:26it is certificate of agency. Now remove
1:07:29the word certificate. What do you remain
1:07:31with?
1:07:32>> It's a prayer or request for agency.
1:07:36>> No, don't say I'm not just give me the
1:07:38just the word not not any
1:07:40interpretation. Certificate of agency.
1:07:43Remove certificate. What do you have?
1:07:48>> A prayer for the matter to be handled
1:07:50with urgency.
1:07:51>> Hey,
1:07:53this question is very simple.
1:07:55Even uh
1:07:58a kid can answer it. We just started
1:08:00talking. Certificate of agency. There
1:08:04are three words in that certificate of
1:08:06agency. Now remove the word certificate
1:08:08of what do you have remaining?
1:08:10>> Agency. Agency.
1:08:12>> Yes. Now agency. So it what what is the
1:08:16what is what is the meaning of agency
1:08:18now? Because that now answers your
1:08:20question directly.
1:08:29Hey,
1:08:38what is the meaning of agency?
1:08:44>> Um,
1:08:46urgency is like immediiacy.
1:08:49>> Okay. It means it is urgent.
1:08:52Yes.
1:08:54>> So the question then you you need to
1:08:56answer is when then do you bring an
1:08:58application under certificate of agency?
1:09:01If
1:09:08>> yes
1:09:11what do you mean yes? I'm saying when do
1:09:14you bring an application under
1:09:15certificate of agency? If
1:09:23If there is uh if if you are
1:09:27apprehensive that an execution of decree
1:09:30will cause you
1:09:31>> to decree. Leave alone decree.
1:09:34Leave alone decree because it is not
1:09:37only in execution of decrees where we're
1:09:39going to come with a certificate of
1:09:40emergency. In so many instances
1:09:43>> when you need when you need
1:09:46>> Uhhuh. when you need the court to attend
1:09:48your matter
1:09:51urgently and a failure to do so then
1:09:54that would affect your case.
1:09:56>> When you need urgent orders is a very
1:09:58simple thing. When you need urgent
1:10:00orders it means when the prayers you're
1:10:02seeking are urgent it means they are
1:10:05urgent. So that's why you have urgency.
1:10:08So not all applications will be brought
1:10:11under certificate of urgency unless they
1:10:14are indeed urgent. Okay. Indeed when a
1:10:18matter is urgent you could be praying
1:10:20for injunction. You could be praying for
1:10:22stay. You could be praying for
1:10:25leave. You could be praying for you know
1:10:28uh setting aside a judgment. There's so
1:10:31many things you could be praying for
1:10:33Marva and on pilla all those things. So
1:10:36long as you can see that this thing is
1:10:39urgent.
1:10:40Okay, then you bring it under
1:10:42certificate of urgency. That is to tell
1:10:44the court that it is extremely urgent
1:10:48and the court is supposed to give these
1:10:50orders as as a matter of priority.
1:10:53>> I asked I asked that because you said uh
1:10:57you said uh you want to apply for leave
1:11:00to appeal but then you are running out
1:11:03of time. So I asked, okay, uh maybe we
1:11:07could approach.
1:11:09>> Uhhuh. No, it's my I'm not saying that
1:11:11when you're running out of time, you
1:11:13seek leave to appeal.
1:11:16I didn't say that and that is not the
1:11:17right position. What I said if you're
1:11:20running out of time, see just appeal
1:11:21then.
1:11:23What I'm saying is you can only go for
1:11:25leave to appeal in two circumstances.
1:11:29The first one, you've ran out of time.
1:11:31It means there's not you're not running.
1:11:34There's no time. You are late.
1:11:35Officially late. You're supposed to
1:11:37appeal within 30 days. It is now 2
1:11:39months. You are way out of time.
1:11:43Okay? So, you've run out of time. But
1:11:46you can't tell the court that hey,
1:11:48please give me give me uh leave to
1:11:51appeal so that I can go and appeal
1:11:53quickly. No, I've said in those two
1:11:56circumstances that two things that needs
1:11:58to be very clear. The first one is that
1:12:01you are appealing out of time. You seek
1:12:04leave. Number two, you're appealing an
1:12:06order that is not appealable. Now, if
1:12:10you are granted leave, then time will
1:12:12start running from the day of the leave.
1:12:15So, this 30 days will start being
1:12:18counted from the day you receive the
1:12:20leave.
1:12:22So, you cannot use certificate of agency
1:12:24to frustrate the leave. I mean to to to
1:12:27get leave quick. No, but you can use
1:12:30certificate of agency to get stay
1:12:32quickly. So it means we have said that
1:12:36anytime you are bringing an application
1:12:38before the court and it is kind of
1:12:40urgent
1:12:42or one of the prayers or all the prayers
1:12:44are urgent then you bring it under
1:12:46certificate of urgency. So for instance
1:12:48if you're seeking leave to appeal
1:12:51there's nothing urgent about that.
1:12:53However your second prayer of stay of
1:12:55execution is urgent. So yes, you can
1:12:58bring that application and a certificate
1:13:00of agency and then we pray that that
1:13:04leave be grant sorry not leave but stay
1:13:07be granted first as we hear the
1:13:10application for for leave. Remember that
1:13:13most of the times stay is not is not
1:13:16even the main prayer. Stay is just a you
1:13:19know any other prayer. It can exist in
1:13:22every application. So I hope you're
1:13:25getting what I'm saying. Certificate of
1:13:27urgency is when the order that you're
1:13:29seeking is urgent. There is nothing
1:13:32urgent with leave to appeal. There's
1:13:34nothing urgent about that. However, if
1:13:37you are apprehensive that as you are
1:13:40appealing or as you're getting this
1:13:41leave, somebody might go and execute a
1:13:44decree against you. That is when you go
1:13:46to court and tell the court and
1:13:48certificate of agency that hey, please
1:13:50give me stay because it is urgent for
1:13:54me. Are we together?
1:13:57>> Yes sir.
1:13:58>> And I have said that at any instance
1:14:01where you have two scenarios
1:14:04uh or a question present you with two
1:14:07instances of application you make all of
1:14:10them in the same application. Okay. The
1:14:12same question I was asking uh Audi right
1:14:15now and I'm asking her. You are
1:14:17presented with a scenario where you are
1:14:19out of time to appeal but at the same
1:14:21time there's a decree. What do you do?
1:14:23You make an application in the notice of
1:14:25motion praying for two things. The first
1:14:27thing you are praying for is leave to
1:14:29appeal out of time and stay of execution
1:14:32pending appeal. Full stop.
1:14:35Audi.
1:14:38>> Yes.
1:14:45>> So let's go back to the court of appeal.
1:14:46Let's go back to the court of appeal.
1:14:49Okay. The next thing you need to get to
1:14:51understand is that the court of appeal
1:14:54shall entertain appeals number one from
1:15:00the magistrate court or the subordinate
1:15:02courts as a second appeal and also the
1:15:06court of appeal can entertain appeals
1:15:11from the high court as a first appeal.
1:15:16So the jurisdiction of the court of
1:15:18appeal is to entertain second appeals
1:15:20that is appeal coming from coming from
1:15:22the magistrate court to the high court
1:15:24to the court of appeal and then the
1:15:26appeals coming from the superior court.
1:15:29Okay. And then at this stage it is also
1:15:32very important to explain and to
1:15:35understand the
1:15:38superior court. Now who is the superior
1:15:40court? The superior court is the high
1:15:42court. The high court is the only
1:15:43superior court that we that we have
1:15:45within the meaning of superiority.
1:15:49Are we together? So sometimes in your
1:15:52reading or in your discussions, you are
1:15:56going to have scenarios where you're
1:15:58being told or even in your uh in your
1:16:03let me highlight it for you. In the
1:16:05exam, can you see my screen?
1:16:12Yes, we can.
1:16:19All right. This one a second.
1:16:25I'm trying to highlight something. I
1:16:27have Yes. So, you'll be told that the
1:16:29Superior Court made a decision. The
1:16:33Superior Court made a decision. Now it
1:16:36is upon you to understand who is the
1:16:38superior court. The superior court means
1:16:40the high court and courts of equal
1:16:43status. So it is only the high court
1:16:46that is called the superior court. And
1:16:49why do we call the high court the
1:16:51superior court? Because the high court
1:16:53is the only court that has original
1:16:56jurisdiction in everything or over
1:17:00everything. It is only the high court
1:17:02that has jurisdiction to entertain all
1:17:04criminal and all civil civil matters.
1:17:06The court of appeal is only the court of
1:17:08appeal. The Supreme Court is only a
1:17:10constitutional court with very limited
1:17:12jurisdiction. So it is only the high
1:17:14court that shall have jurisdiction in
1:17:17all civil and criminal matters. That is
1:17:20why it is called the superior court. But
1:17:22of course also understand uh that the
1:17:25high court is the residence of the bar.
1:17:28When you get admitted, you are an
1:17:30advocate of the High Court of Kenya. You
1:17:33know, some of you like being uh crazy by
1:17:37calling themselves advocates of the
1:17:39court of appeal and Supreme Court. You
1:17:41are an advocate of the High Court. Full
1:17:43stop.
1:17:46There's no one that is called the
1:17:48advocate of the Supreme Court. So don't
1:17:51confuse your villages.
1:17:54So, so it is a high court that we call
1:17:57the superior court. It is the superior
1:18:00court. So, anytime somebody mentions uh
1:18:03that the superior court made a decision
1:18:06or the judgment of the superior court,
1:18:08we are making reference to the judgment
1:18:10of the high court. Now remember that in
1:18:12the ordinary English meaning superior
1:18:15means high court, court of appeal, uh
1:18:17supreme court those are superior. But in
1:18:19the context of the civil procedure or
1:18:22within the law superior is only the high
1:18:25court. Okay. All right. Sour. So that is
1:18:30uh clear. So let us go and talk about
1:18:32the procedure of appealing to the uh
1:18:38court of appeal. Now in the high court
1:18:41we are filing two documents. In the high
1:18:44court we are filing two documents. But
1:18:47before I go there, I've just remembered
1:18:50something that we've read, but I need to
1:18:51explain it further. Under rule 52B,
1:18:54under rule 52B, we have um said
1:18:58something that is very fundamental. And
1:19:00this is here, let me highlight it.
1:19:05in any civil matter.
1:19:08Okay, in any civil matter where
1:19:12a notice of appeal has been lodged. So
1:19:16it means you can never get state of
1:19:19execution in the court of appeal under
1:19:21rule 52B without lodging a notice of
1:19:24appeal. All right. Now let's go and talk
1:19:27about the procedure and then I'll come
1:19:29and explain uh that point. Now in terms
1:19:31of the procedure, there are three
1:19:33documents that you have to file. The
1:19:35first document is a notice of appeal.
1:19:37Why? Because the superior court must be
1:19:40notified that you're appealing against
1:19:42its judgment. Some of the benefits that
1:19:46the high court is enjoying as a superior
1:19:48court is that you cannot just wake up
1:19:50and appeal the decision of the superior
1:19:52court without first informing that
1:19:54superior court.
1:19:58So before you inform the high court, you
1:20:00cannot you cannot appeal to the court of
1:20:02appeal. So how do you inform the high
1:20:04court? You inform the high court through
1:20:06what you call the notice of appeal.
1:20:11Are we together?
1:20:21>> Yes guys.
1:20:24>> Yes we are.
1:20:26>> Yes we
1:20:28>> all right. So the notice of appeal. So
1:20:31you first prepare your notice of appeal
1:20:34uh that is filed within uh within 14
1:20:37days in the high court. So that notice
1:20:39of appeal is filed in the high court to
1:20:42tell the high court that we are
1:20:46dissatisfied with your judgment as the
1:20:48high court and we are going to appeal it
1:20:51to the court of appeal. Okay, against
1:20:53the whole of that judgment. My address
1:20:56of service is this. the other person's
1:20:58address of service is uh is this. So
1:21:02let's go and read rule 77. Uh let's go
1:21:05and read rule 77. Before we go to rule
1:21:0777, let me just give a summary. So
1:21:09notice of appeal 14 days and then once
1:21:12you file a notice of appeal, you'll have
1:21:1560 days to file your to file your
1:21:18memorandum of appeal and the record of
1:21:20appeal. You have 60 days to institute
1:21:23your appeal. 60 days to institute your
1:21:26appeal. So remember a notice of appeal
1:21:30is not an appeal and there's a question
1:21:32in 22 testing this and I want you to
1:21:35understand it very well before we read
1:21:37anything I want us to get the overall
1:21:41procedure. So if you want to appeal from
1:21:44the superior court that is the high
1:21:46court then the procedure is you have to
1:21:49file your notice of appeal in the
1:21:52superior court in the high court telling
1:21:54the high court that you intend to appeal
1:21:57against its decision to the court of
1:22:00appeal.
1:22:01Now that notice of appeal is not an
1:22:04appeal.
1:22:06Are we together? Once you file it then
1:22:08you have 60 sorry you have 60 days to
1:22:11now file your actual appeal and the
1:22:14actual appeal is the memorandum of
1:22:16appeal and the record of appeal. Are we
1:22:19together?
1:22:21So that therefore means that if you file
1:22:23a notice of appeal in the high court but
1:22:26you don't proceed and file your actual
1:22:29appeal in the court of appeal then you
1:22:31shall be deemed not to have appealed.
1:22:37If you file a notice of appeal but you
1:22:40don't follow up with a a memorandum of
1:22:43appeal then that notice of appeal shall
1:22:45not be regarded as you have as if you
1:22:48started appealing that is in civil. I
1:22:50want you to understand it very well
1:22:51first before we get into reading
1:22:53anything. So we are saying there are
1:22:55three documents. One is just a notice.
1:22:58It is called a notice of appeal. The
1:23:01notice of appeal is that document that
1:23:03notifies the high court that you intend
1:23:06to appeal. Okay. Now after that you
1:23:09shall proceed now and file your
1:23:12memorandum of appeal within 60 days in
1:23:16the court of appeal. Now the consequence
1:23:18is this. If you don't follow up with a
1:23:22memorandum of appeal, you just filed
1:23:24your notice of appeal. we shall regard
1:23:27as if you've not appealed that matter
1:23:29because a notice of appeal is not an
1:23:32appeal until you file a memorandum of
1:23:34appeal. There's a question two or three
1:23:37in 2022 testing the same concept. If you
1:23:41have it, please send it to me so that I
1:23:43can project it and uh we can see what
1:23:46I'm saying. So if you file a notice of
1:23:49appeal but you fail to proceed and file
1:23:52your memorandum of appeal that is not an
1:23:54appeal. The appeal is the memorandum and
1:23:58the record but you are required to
1:24:01notify the high court. If you don't
1:24:04notify the high court then that appeal
1:24:06shall be deemed to be to be incompetent.
1:24:11So let's go to rule uh 77. So I've said
1:24:1414 days notice of appeal, 60 days
1:24:17memorandum of appeal and the record of
1:24:20appeal. Now I probably must say
1:24:22something so that you understand. Now
1:24:24the rules I've just laid out right now
1:24:27will only apply in civil. It means a
1:24:31notice of appeal is not an appeal in
1:24:34civil. However, in criminal a notice of
1:24:38appeal to the high court will be deemed
1:24:41to be part of the appeal. So the moment
1:24:44you've notified the high court that
1:24:45you're going to appeal the law in
1:24:48criminal will deem it that you've
1:24:50already started appealing. That is the
1:24:52distinction. That distinction is put
1:24:54forth so that you can understand so that
1:24:57you can appreciate the procedure and the
1:25:02different dynamics. So notice of appeal
1:25:04is not an appeal in civil but it is an
1:25:08appeal in criminal. It means in criminal
1:25:12you will still be filing a notice of
1:25:14appeal within 14 days and then a record
1:25:16of appeal and memorandum of appeal
1:25:18within 60 days.
1:25:21But notice of appeal the moment you file
1:25:24it has been deemed that yes you have
1:25:26started you have started to appeal.
1:25:33Are we together? I hope we are together
1:25:38>> now.
1:25:39Somebody please read for us uh rule 77.
1:25:47>> Rule 77 notice of appeal. A person who
1:25:51desires to appeal to the court shall
1:25:53give notice in writing. Which notice
1:25:56shall be lodged in two copies with the
1:25:59registra of the superior court. Each
1:26:02method under Sabu one shall subject to
1:26:04rules 84.97
1:26:07be lodged within 14 days after the date
1:26:10of the decision against the decision for
1:26:13which appeal is lodged.
1:26:16Each notice of appeal and a subreward
1:26:19word shall state whether it is intended
1:26:21to appeal against the whole or part only
1:26:25of the decision and where it is intended
1:26:28to appeal against a part only of the
1:26:30decision shall. A specify the part
1:26:34complained of and b the address for
1:26:37service of the appellant and see the
1:26:39names and addresses of the persons
1:26:41intended to be served with copies of the
1:26:44notice. where an appeal lies only with
1:26:47leave or on a certificate that a point
1:26:50of law of general public importance is
1:26:52involved. It shall not be necessary to
1:26:55obtain such leave or certificate before
1:26:58lodging the notice of appeal where it is
1:27:01intended to appeal against the decree or
1:27:05order. It shall not be necessary that
1:27:08the decree or order be extracted before
1:27:11lodging the notice of appeal.
1:27:14A notice of appeal shall be
1:27:16substantially informed D as set out in
1:27:20the first schedule and signed by or on
1:27:23behalf of the appellant.
1:27:27>> All right. Thank you. All right. Now we
1:27:30understand
1:27:32>> the question to do with notice of
1:27:34appeal.
1:27:36>> Now guys, can you hear me? Am I
1:27:38>> instant?
1:27:41Is my audio instant or is it is it
1:27:44delaying?
1:27:50>> You're good.
1:27:54>> No,
1:27:57you guys are taking time to answer. So
1:27:58that means that maybe my audio is one
1:28:00that is delaying. So can you hear me
1:28:02instantly?
1:28:04>> Yeah, we can.
1:28:06>> Yes.
1:28:07>> Yes.
1:28:08>> All right.
1:28:11>> Oh, great. All right. Now, uh let us uh
1:28:15get into the notice of appeal. So I've
1:28:18said a notice of appeal uh is filed
1:28:21within 14 days uh from the date of the
1:28:24decision and it is supposed to give
1:28:26notice to the court that you are going
1:28:29to be appealing its decision. Okay. Now
1:28:34how is a notice of appeal supposed to be
1:28:36prepared? Let us go to my screen right
1:28:39there.
1:28:41Let us go draft one. It's a very simple
1:28:44document by the way. It is only supposed
1:28:45to indicate the notice that you are uh
1:28:48that you are appealing.
1:28:51Okay. Uh that uh and also it's supposed
1:28:54to indicate the grounds if it is you
1:28:57know if it is um a part appeal and then
1:29:02it must indicate the address of service.
1:29:06Okay. So
1:29:10let's go there.
1:29:16Let's go there so that we understand
1:29:18what we are dealing with
1:29:21uh before
1:29:23um
1:29:28yes so you will tell me whether you can
1:29:31see my screen
1:29:34you will let me know when you see my
1:29:37screen.
1:29:39So right there
1:29:5125.
1:30:00All right. So there we go.
1:30:07So we have um
1:30:10notice of appeal. Can you see the
1:30:12screen?
1:30:17>> Yes, we can.
1:30:20Yes.
1:30:36All right. Sour. So let's uh let's see
1:30:39it. So in the high court of course it
1:30:42must be filed in the high court. So the
1:30:44republic of Kenya in the high court of
1:30:47Kenya at of course Nairobi. Uh you don't
1:30:52have to write the division. Let me just
1:30:53remove that for you. Uh civil case
1:30:56number. This remember this is still the
1:30:57caption in the high court. This matter
1:30:59is coming from the high court. So the
1:31:01caption in the high court is what you're
1:31:03dealing what you're dealing with. Okay.
1:31:06So in the high court they are still
1:31:07plaintiff and the defendant. So you're
1:31:10going to say that take notice that our
1:31:13person that is appealing here is the
1:31:14plaintiff that KTK limited being
1:31:16dissertatified with the decisions not
1:31:18parts
1:31:22uh with the decisions
1:31:24of um
1:31:26let's just make it simple. this hable
1:31:29court
1:31:34unless the question gives you
1:31:38uh gives you the name of the magistrate
1:31:41or the name of the judge. You don't
1:31:42mention their name. Uh dated
1:31:51uh given sorry
1:31:54want us to make it dated
1:31:5723rd
1:32:00June
1:32:022025.
1:32:04Uhuh.
1:32:06intends to appeal the court of appeal
1:32:08against the whole of the seat decision
1:32:12against the whole
1:32:19seat decision.
1:32:22Okay.
1:32:24So that is if you are appealing against
1:32:26the whole judgment. Sometimes you are
1:32:30appealing against just part of part of
1:32:32it. Okay. Now if you are appealing
1:32:36against part of it then you'll give us
1:32:39the grounds for the part of it. For
1:32:42instance, let me give us give you a
1:32:43scenario uh that you've received
1:32:46judgment in your favor. You've received
1:32:48judgment in your favor number one that
1:32:51the defendant is liable but the court
1:32:54has awarded you no no cost. So you'll be
1:32:59appealing against that order of cost.
1:33:03Okay. So how will that look like?
1:33:08So let's let's let's put it here again.
1:33:14So
1:33:16let's copy that and put it here. So the
1:33:19second in this let's let's call it the
1:33:20first scenario. So this is the first
1:33:22scenario.
1:33:23Okay. And let's call this the second uh
1:33:27no. So let me just highlight them.
1:33:38Sorry, let me highlight that in blue.
1:33:41Sorry, in yellow. That is yellow. Okay,
1:33:43so the first scenario, if you're
1:33:45appealing against the whole judgment,
1:33:47then you tell us that. Okay, in the
1:33:50notice of appeal. But if you're
1:33:52appealing against just part of the
1:33:54judgment, what do you do? You tell us.
1:33:57You tell us this. So, let's type what
1:33:59you will tell us. The tech notice that
1:34:01KTK Limited being dissatisfied with the
1:34:03decision of this honable court dated
1:34:0523rd of June intends to appeal to the
1:34:07court of appeal against
1:34:16sorry
1:34:19part
1:34:20of that decision
1:34:23as follows. So you give us that specific
1:34:26part that you that you are challenging
1:34:29and that would be number one
1:34:32that the court
1:34:35fail
1:34:37to award
1:34:39the uh plaintiff
1:34:44costs.
1:34:46So it depends on the part you're
1:34:48appealing against. Sometimes you can
1:34:50appeal against the whole of the said
1:34:52judgment or just part of it.
1:34:55Guys, are we understanding both what
1:34:57I've highlighted in yellow and what I
1:35:00have now highlighted in green? Do you
1:35:03understand the difference of those two
1:35:04things?
1:35:06Say yes, you do.
1:35:12So, in your notice of appeal, if you're
1:35:14appealing against the whole of the
1:35:16judgment, you don't need to give us the
1:35:17grounds.
1:35:19Okay? So, in that instance, it will look
1:35:22like this. Okay? It will look like this.
1:35:25So take notice that this uh uh we can
1:35:28call him the plaintiff being
1:35:29dissatisfied with the decision uh sorry
1:35:32dissatisfied with
1:35:35or by the decision of this honorable
1:35:38court dated the 23rd of June 2025
1:35:41intends to appeal to the court of appeal
1:35:45to the court of appeal. to the court of
1:35:48appeal
1:35:51intends to appeal to the court of appeal
1:35:53against the whole of the said decision.
1:35:56Full stop. And then you provide your
1:35:58address of service. Okay? You'll be
1:36:00saying the address of service for the
1:36:02appalant shall be care of
1:36:06just write is so that you don't get
1:36:08confused
1:36:10or shall be
1:36:13list the the advocate for the the
1:36:16advocate for
1:36:18uh the appalant and then
1:36:22the same you give the address of service
1:36:24of uh the respondent where you say uh
1:36:27the address of service for the
1:36:28respondent shall
1:36:31Okay, that is the address. Uh the same
1:36:34thing like that. So you just need to
1:36:39give us the indication that intention of
1:36:41appeal and then you give us the address
1:36:44of the two parties and then you date and
1:36:46then it is uh it is signed
1:36:50and then it is lodged with the with the
1:36:52registra is lodged with the registister
1:36:55of the registra of the court of so the
1:36:58high court the register of the high
1:37:00court so this is the notice of appeal so
1:37:03republic of Kenya in the high court the
1:37:06capture of parties the way they are.
1:37:08Notice of appeal which is under rule 77
1:37:10of the court of appeal rules 20 2022.
1:37:15Remember that the rules have been have
1:37:16been amended 222. Take notice that KTK
1:37:21limited being dissatisfied with the
1:37:24decision of this honorable court dated
1:37:2623rd of June 2025 intends to appeal to
1:37:29the court of appeal against the whole of
1:37:31a said decision or against the part of
1:37:33that decision as follows.
1:37:36Guys, let me take a few questions on the
1:37:38notice of appeal. Now, this document is
1:37:40just one page. Guys, when you're dealing
1:37:42with appeals is very easy. Appeals are
1:37:44very easy. There's nothing to write.
1:37:46Pages and pages and pages. Just memor of
1:37:48appeal is just one page. Notice of
1:37:50appeal is just one page. Record of
1:37:52appeal is not even drafted.
1:37:56Any questions on this? And I've said it
1:37:58is filed within 14 days in the high
1:38:01court. The moment you've lodged it in
1:38:03the high court then automatically you
1:38:06gain audience before the court of appeal
1:38:08in as far as state of execution is
1:38:11concerned. So it means the moment you've
1:38:13lodged this then you can go to the court
1:38:15of appeal to seek state of execution
1:38:17because when you go to the court of
1:38:19appeal to seek state of execution then
1:38:21the court of appeal will ask you have
1:38:23you lodged a notice of appeal because
1:38:25this notice of appeal is what gives you
1:38:28audience.
1:38:30Okay. For instance, you know, when you
1:38:34grew up in uh in an African family
1:38:40or an African homestead, some parents
1:38:43used to,
1:38:45you know, forbid their kids from eating
1:38:49in the neighbor's house. If you eat
1:38:51anything in the neighbor's house, your
1:38:54mother will make you vomit it. You'll be
1:38:55beaten until you vomit that food, you
1:38:58know. And I don't know why, but that is
1:39:01how African parents at some point were.
1:39:04So if you go to the neighbor's house
1:39:07before you eat, the neighbor will want
1:39:10to know, is it true? Is your mom aware
1:39:13that you are here and you're eating
1:39:16you know that is when they will give you
1:39:18food because if they give you food
1:39:19without the permission of your mother,
1:39:21then that will bring trouble. Are we
1:39:24together? is the same thing the same
1:39:26relationship between the court of appeal
1:39:28and the high court. The moment you go to
1:39:29the court of appeal the court of appeal
1:39:31will ask you does the high court know
1:39:33that you are here?
1:39:35Does the high court know that you're
1:39:36here? And how will the high court know
1:39:38when you file a notice of appeal? So
1:39:41without notice of appeal you have no
1:39:43audience before the court of appeal.
1:39:45They will not listen to you. They will
1:39:47not listen listen to you unless that
1:39:52matter is of great public importance.
1:39:54great public importance, you know, but
1:39:57in any circumstance, they will not
1:39:59listen to you unless you've notified the
1:40:02high court. Are we together, guys?
1:40:05Any question on notice of appeal?
1:40:15>> Yes, Nixon.
1:40:18>> Oh my goodness.
1:40:21Is it supposed to be plenty and
1:40:23defendant or the appant and the
1:40:25>> I'm just say you're not appealing. This
1:40:27is not an appeal. This is just a
1:40:30notification that one party is not
1:40:32happy. You're not appealing. You become
1:40:34an appalant before the court you're
1:40:36appealing to. Are we are we together?
1:40:41>> Yes. Yes. Thank you.
1:40:43>> And that's why you have said notice of
1:40:44appeal is not an appeal. You're simply
1:40:47telling the high court this matter
1:40:49remember it is before the high court. So
1:40:50the caption will remain as it is in the
1:40:54high court but also remember that if it
1:40:57was an appeal to the high court then it
1:40:59will be appealant respondent and then
1:41:02you'll be indicating that the respondent
1:41:04being dissatisfied intends to appeal to
1:41:07the court of appeal or the appalent
1:41:09being dissatisfied. So the parties will
1:41:11only become appalent respondent if this
1:41:14matter was an appeal that was lodged in
1:41:16the high court and now you are taking it
1:41:17to the court of appeal.
1:41:20Elana.
1:41:24>> Yes. Yes. Thank you.
1:41:28>> All right. Now, let's go to rule 84
1:41:33and lodge our appeal.
1:41:37So, let's go there uh to rule
1:41:40uh 84
1:41:44and lodge our appeal.
1:41:48So let's go to the court of appeal rules
1:41:50again. Uh my screen is up
1:41:57to rule 84
1:41:59which now provides for the institution
1:42:02of appeals. Okay. Now subject to rule
1:42:05118 an appeal shall be instituted by
1:42:08lodging in the appropriate registry
1:42:11within 60 days after the date when the
1:42:14notice of appeal was lodged. So what are
1:42:17you lodging? So your appeal is only
1:42:20lodged after the notice of appeal. So
1:42:22within 60 days. So what are you lodging?
1:42:25A memorandum of appeal in four copies.
1:42:29The record of appeal in four copies. The
1:42:32prescribed fee and the security for cost
1:42:36of the appeal.
1:42:38Okay. The security for cost of the
1:42:41appeal. It means that sometimes the
1:42:45court will require you to deposit
1:42:47security for cost. However, we said that
1:42:51if this is a proper appeal, it means you
1:42:54are not able to afford the security for
1:42:57cost, then the court of appeal shall
1:42:59allow you to appeal without security for
1:43:03cost. Why is that important?
1:43:06Why is security for cost important in
1:43:09this instance? Now the court of appeal
1:43:11is very complicated and the court of
1:43:13appeal is trying to discourage people
1:43:16from going to the court of appeal and
1:43:18the court of appeal is simply saying
1:43:20that for you to come to the court of
1:43:21appeal you must be very sure that this
1:43:24is a matter that you are going to be
1:43:26hand you are going to be winning this is
1:43:28a matter that is uh that is serious it's
1:43:31not a vexacious appeal so it is supposed
1:43:34to discourage very baseless appeals so
1:43:38how do you ensure the baseless appeals
1:43:41are not filed in the court of appeal.
1:43:44The court of appeal will tell somebody
1:43:45that hey before you come and appeal give
1:43:48us money so that if you lose we shall we
1:43:51shall use that money as cost.
1:43:54So you deposit that money only when
1:43:56you're sure you're going to win.
1:43:58Okay? only you are sure you have a good
1:44:01appeal that you're going to win or that
1:44:03that cost will not be for fated because
1:44:05if it is a vexious appeal the court will
1:44:07the court will forfeate that money and
1:44:11give it to uh the successful winner. So
1:44:14that is the reason why we have security
1:44:16for cost. So before we hear your matter
1:44:18please please deposit some money with us
1:44:21and the court will determine that. So
1:44:23once you deposit that money that is when
1:44:25you appeal your appeal shall be heard.
1:44:27But remember we have said that if it is
1:44:30a proper appeal it means the appalant is
1:44:33not able to afford the security for cost
1:44:35then the court of appeal is instructed
1:44:37by the rules to hear that to hear that
1:44:40give an exemption and then hear that
1:44:42appeal without necessarily the appalant
1:44:45depositing some security for cost. So it
1:44:47is security for cost
1:44:50security for for cost.
1:44:53Security for cost is different from
1:44:55security for the performance of a
1:44:57decree. Now security for the performance
1:45:00of decree is different and that is
1:45:02usually required when you are applying
1:45:05for state of execution.
1:45:08So if you are applying for state of
1:45:09execution the court can tell you that
1:45:12hey okay you want to stay execution
1:45:13because you're appealing please give us
1:45:15this money put it here so that you can
1:45:18just go and appeal. If you win, well and
1:45:20good. If you don't win, you uh we can
1:45:23use this money to to pay the decree
1:45:25holder. What am I saying in in short?
1:45:29Now, if you want state of execution
1:45:31pending appeal, it means you are telling
1:45:34the decree holder that no, I don't want
1:45:38to pay you now. You are telling the
1:45:40decree holder that I don't want to pay
1:45:42you now. Okay? I will not pay you now. I
1:45:46want to appeal fast. So please stay
1:45:49execution as I as I do my things as I
1:45:53appeal and I will only pay you after the
1:45:56appeal is over. Now for the decree
1:45:58holder to be confident and to be happy
1:46:01you have to deposit that money in a
1:46:03joint account and normally you deposit
1:46:05it to the court. You deposit that money
1:46:08in a joint account with the court so
1:46:10that the court can hold that money. If
1:46:12you're supposed to pay 1 million, the
1:46:14court might require you to deposit that
1:46:161 million with the court so that the
1:46:19decree holder is happy and confident
1:46:24that they will get their money that
1:46:25you're not just delaying or wasting
1:46:26their time. That also is supposed to
1:46:30discourage people from appealing without
1:46:32basis. So there's security for cost that
1:46:35is specifically for payment of cost
1:46:37should you lose the appeal or should the
1:46:40appeal be found to be vexacious and then
1:46:44we have security for satisfaction of a
1:46:46decree. It means just deposit security
1:46:49right now that is equivalent to the
1:46:51amount of money that you're supposed to
1:46:55are supposed to uh to pay or if it is a
1:46:58a property you have to transfer the
1:47:01transfer the title of that land to court
1:47:05uh or to somebody else to have it
1:47:08jointly uh so that in any case you lose
1:47:12then that property shall be
1:47:15transferred.
1:47:19Are we together?
1:47:26So are we together on uh the memorandum
1:47:29of appeal? It is filed together with the
1:47:31record of appeal within 60 days after
1:47:34the date when the notice of appeal was
1:47:37was lodged.
1:47:41>> Yes, we are.
1:47:45Yes, we are.
1:47:48>> All right. So, you need to understand
1:47:51that. So, lastly, let's talk about let's
1:47:53talk about the the contents of the
1:47:56record of appeal. Uh, which we have
1:47:58already talked about before. Uh,
1:48:00contents of the record of appeal.
1:48:03Uh, of course again before contents of
1:48:07record of appeal, let's talk about the
1:48:10>> contents of the memorandum of appeal.
1:48:13>> Okay.
1:48:14The contents of the memorandum of appeal
1:48:18are very specific. Uh it is just the
1:48:21grounds and your pers. Okay. The grounds
1:48:24of the grounds of your objection or the
1:48:26grounds of your appeal. That is all.
1:48:29Okay. And then of course the contents of
1:48:32record of appeal. The same thing we
1:48:34talked about the index of the documents.
1:48:36The index of the documents. Uh the
1:48:39statement of course showing the address
1:48:40of service of parties which of course
1:48:42was in the notice of appeal. Uh the
1:48:45pleadings all the pleadings that were
1:48:47filed the trial judges notes of the
1:48:50hearing the transcript of any shorthand
1:48:53notes taken during the trial all the
1:48:56affidavits all the documents produced in
1:48:59hearing I mean uh during hearing the
1:49:02judgment or the order the decree if
1:49:04there's any or a certified copy of it.
1:49:07uh if there's a an application for leave
1:49:10that also will be filed there together
1:49:12with the leave itself and then the
1:49:15notice of appeal will also form part of
1:49:17the record the notice of appeal and any
1:49:19other document that was produced during
1:49:22uh during that leave so during the uh
1:49:25the trial of that matter at the trial
1:49:27court. Okay. So I hope that makes sense.
1:49:30I hope that is making sense. So that is
1:49:32how you appeal to the court of the court
1:49:35of appeal. So again, how is a memorandum
1:49:38of appeal in the court of appeal
1:49:40supposed to look like? Is the same
1:49:42thing. The memorandum is the same thing.
1:49:45The memorandum of appeal is the same as
1:49:47the memorandum of appeal in the high
1:49:49court is the same thing whether in
1:49:51criminal or civil it is uh it is the
1:49:54same thing. So I hope you can see my
1:49:56screen. The memorandum of appeal is
1:49:57there. The morandum of appeal is there.
1:50:01So what you just need to write is that
1:50:04Republic of Kenya in the court of
1:50:06appeal. Remember that this is filed in
1:50:09the court of appeal. So court of appeal
1:50:14sorry
1:50:16appeal
1:50:18at Nairobi civil appeal number that and
1:50:21then memor of appeal. So when you come
1:50:23here because you are appealing to the
1:50:26court of appeal then it changes. So the
1:50:29appellent not being satisfied or being
1:50:32dissatisfied by the judgment of the
1:50:35honable judge.
1:50:37Okay, the honable judge
1:50:42because now we are not appealing against
1:50:44the decision of a magistrate. So the
1:50:46honable judge
1:50:49in the above suit dated that hereby
1:50:52appeals uh to this court against the
1:50:54whole of the said judgment on the
1:50:56following grounds. So that the learned
1:50:59judge,
1:51:02okay, the learned judge,
1:51:05not the landed magistrate because we're
1:51:07now appealing against appealing against
1:51:10the decision of a judge
1:51:13that the judge add in law. The judge add
1:51:15in fact the judge add in law. So you see
1:51:18what I'm saying? It is very simple. So
1:51:20you only change the caption where we
1:51:23have uh the the court of republic of
1:51:26Kenya in the court of appeal because
1:51:28you're going to the court of appeal and
1:51:30then the morandum of appeal that the
1:51:33appalant being dissatisfied with the
1:51:35judgment of the honorable judge dated
1:51:43the 20th day of March 14 hereby appeals
1:51:46to this court
1:51:48uh
1:51:50against the horn of they said judgment
1:51:53on the following grounds. Okay, that is
1:51:56how you prepare a memorandum appeal is
1:51:58the same thing. The only thing is
1:51:59changing is magistrate judge, magistrate
1:52:01judge to reflect who you are appealing
1:52:05from.
1:52:06That is all. So we have a notice of mot
1:52:09notice of appeal which you have looked
1:52:10at. We also have the memorandum of
1:52:13memorandum of appeal which is the same
1:52:15document which is also accompanied by
1:52:17the record of appeal. Record of appeal
1:52:19is just a collection of all the
1:52:20documents. Guys, are we together?
1:52:24Are we together?
1:52:32>> Yes, we are.
1:52:34>> All right. So, finally, not finally,
1:52:37sorry. Uh I want us to go back and talk
1:52:40about the question to do with uh the
1:52:42application to strike out the
1:52:44application to strike out uh an appeal
1:52:48or a record of appeal.
1:52:52That is under rule 86.
1:52:54Uh rule 86 is very clear. A person
1:52:57affected by an appeal may at any time
1:53:00either before or after the institution
1:53:02of that appeal apply to the court to
1:53:04strike out the notice of appeal or the
1:53:07appeal as the case may be on the ground
1:53:09that no appeal lies. That is to mean
1:53:13that that order is not appealable.
1:53:16that order is not appealable as of right
1:53:21or that if it is appealable as of right
1:53:23they did not seek leave or that they are
1:53:27appealing out of time without leave.
1:53:31So you challenge you make an application
1:53:34to court to strike out okay to strike
1:53:38out the appeal or the notice of appeal.
1:53:43So what do you mean the appeal or the
1:53:44notice of appeal? Now if I have filed a
1:53:47notice of appeal only then you can go to
1:53:50court to the court of appeal to proceed
1:53:52and to proceed and strike out my notice
1:53:56of appeal
1:53:57that the that the court strike out my
1:53:59notice of appeal and that you can do in
1:54:01the high court or in the court of
1:54:02appeal. But if I've already filed a
1:54:05memorandum of appeal then you simply ask
1:54:07the court to strike out all both the not
1:54:10of appeal and the memorandum of appeal.
1:54:12So what is your prayer? The prayer is
1:54:15that the court do issue an order
1:54:17striking out the memorandum of appeal
1:54:20and the notice of appeal dated this day
1:54:23and this day. Okay. Then of course cost
1:54:27of the application and then you come and
1:54:29give us the grounds that why are you
1:54:32seeking that this appeal be be uh be be
1:54:36dismissed because number one maybe this
1:54:38appeal the court doesn't have
1:54:39jurisdiction or the court is
1:54:41incompetent. I mean the appeal is
1:54:42incompetent or this matter they don't
1:54:45have leave to appeal it or they're
1:54:46appealing out of time without leave.
1:54:50Are we together? And that is all. The
1:54:51same thing will be in your supporting
1:54:53affidavit and that is all. That is the
1:54:55application to strike out a notice of
1:54:57appeal or an appeal. The same can be
1:54:59done in the high court. If somebody has
1:55:01filed an appeal, a memorandum of appeal
1:55:03in the high court, you can make an
1:55:05application to the same high court to
1:55:07have the high court dismiss or strike
1:55:10out actually strike out that specific
1:55:13memorandum of appeal for the same same
1:55:15reason that this appeal is not
1:55:18competent.
1:55:19Are we together?
1:55:25>> Yes, we are.
1:55:27>> All right. Finally on appeals is the
1:55:30question to do with the powers of the
1:55:31appellet court. Powers of the appellet
1:55:34court not the powers of the court of
1:55:35appeal. No powers of the appelate court.
1:55:40What do we mean by that? The powers of
1:55:42the appellet court. The powers of the
1:55:44appellet court are powers of any court
1:55:46that have appellet jurisdiction. So the
1:55:49first one is they can determine that
1:55:51matter finally. They can give final
1:55:55determine the matter and give final
1:55:57directions. That is the first one.
1:56:00The second one, the court of appeal or
1:56:02the high court can remand the matter
1:56:05back to the trial court. So reming a
1:56:10matter simply means the court of appeal
1:56:11will tell the will tell uh the
1:56:15the trial court that this matter was not
1:56:17tried fully. You need to try it. you
1:56:20need to try it again on these issues
1:56:23or you consider this matter on
1:56:25irrelevant points you didn't consider
1:56:27the the relevant points. Okay, that will
1:56:30also be uh the power of the appate uh
1:56:34the appate court. The next one is the
1:56:37power to frame issues for determination.
1:56:41So if the trial court did not frame the
1:56:43the right issues for determination, it
1:56:46means the court of appeal or the high
1:56:48court shall have the duty or the power
1:56:51to frame the issues. By framing issues,
1:56:54I mean it will tell the uh the trial
1:56:56court, which could be the high court if
1:56:59you're appealing to the court of appeal
1:57:01or the magistrate court if you're
1:57:02appealing to the high court to tell the
1:57:04trial court that hey try this matter
1:57:07again but on the following issues that
1:57:09we have framed for you. Okay? And then
1:57:12of course they have
1:57:14uh the jurisdiction uh of course to
1:57:16order for a new trial. they have the
1:57:19jurisdiction to order for a new trial or
1:57:21even a new trial before a different
1:57:24bench of bench of uh judges or
1:57:27magistrates. Okay, they have that
1:57:30specific jurisdiction to order for a new
1:57:32trial. Lastly, they have jurisdiction to
1:57:36take additional evidence. Now this
1:57:39reminds me this reminds me of a question
1:57:41in 2022
1:57:43uh but it was largely criminal and uh
1:57:46you were supposed to write submissions
1:57:48on the powers of the court of appeal or
1:57:51the appellet court entertaining an
1:57:53application for revision. It was a
1:57:55question one actually to take additional
1:57:57evidence. So I want you to go as you go
1:58:01to bed, please brainstorm.
1:58:04Okay, please brainstorm on the power of
1:58:08the applate code to take additional
1:58:10evidence. That is your assignment. But
1:58:12that is a very interesting read. If you
1:58:14read it, you'll feel happy. It's a very
1:58:17direct thing and I want you to
1:58:19understand it. The power to take
1:58:20additional evidence. Now, how does an
1:58:23appate court take additional evidence?
1:58:25Number one, they can take through
1:58:27witness testimony, actual examination of
1:58:30witnesses. It means the witnesses will
1:58:32appear before the court of appeal or the
1:58:34high court and shall be they shall be
1:58:36cross-examined.
1:58:42Are we together? That is the first one.
1:58:44The second one, they can take evidence
1:58:46through affidavit. Parties can swear an
1:58:48affidavit uh maybe supporting affidavit,
1:58:51supplementary affidavit or further
1:58:53affidavit.
1:58:55um uh in that case. And then thirdly,
1:58:59they can have the trial court take that
1:59:03evidence for uh for I mean for it. What
1:59:06am I saying? I'm saying if it is a court
1:59:08of appeal, it can order that hey the
1:59:11trial court go and take evidence for me.
1:59:14The two of you go and appear before the
1:59:17trial court. The trial court will
1:59:19examine you and then the trial court
1:59:20will send that evidence to the court of
1:59:23appeal or even the high court. Okay? It
1:59:26can order the trial court to take that
1:59:28evidence for it or any other magistrate
1:59:31court to take that additional evidence
1:59:34for it. Remember that the court of
1:59:35appeal or the appealate court is allowed
1:59:40okay is allowed to take additional
1:59:43evidence to reopen the file and take
1:59:45additional evidence and to question
1:59:48parties
1:59:50okay. So please please look at that.
1:59:54Please please look at uh look at that.
1:59:57And uh without forgetting again in
1:59:59criminal there are instances when uh the
2:00:02court can can uh recall witnesses and
2:00:06crossexamine them. When can a witness be
2:00:08called again by the court for purposes
2:00:11of for purposes of examination and chief
2:00:14or cross examination? That is your
2:00:16assignment for the day and that
2:00:18summarizes the question of the question
2:00:21of appeals. That summarizes the question
2:00:23of appeals and I hope that you you
2:00:26understand appeals and you are able to
2:00:29know the timeline from the high court
2:00:32sorry to the high court it is 30 days
2:00:34memorandum of appeal and the record of
2:00:36appeal. Okay. Now from the high court to
2:00:39the court of appeal there are three
2:00:41documents 14 days notice of appeal.
2:00:44Okay. And then we have
2:00:48memorandum of appeal within 60 60 days
2:00:51after the filing and service of the
2:00:54notice of appeal. Okay. So I will take
2:00:58questions. The intention today was to
2:01:01introduce
2:01:03uh judicial review and constitutional
2:01:05litigation. Uh but I will not introduce
2:01:07it today. I will introduce it in the
2:01:09next class. We'll do it together. After
2:01:12the next class, we shall actively now
2:01:15start on the past papers. Uh because now
2:01:19we shall have done all the major the
2:01:22major uh
2:01:25the major topics. So sorry we've taken
2:01:27so much time. We've we are 30 minutes
2:01:30late but uh it was necessary to complete
2:01:33appeals so that we are all on the same
2:01:36page. So that summarizes the remedies
2:01:38against judgment which we have said
2:01:40there are five step execution, payment
2:01:43and installments, objector proceedings,
2:01:45uh review which you did in the last
2:01:47class and appeals. Are we together?
2:01:51Those are the remedies against judgment
2:01:53and decree.
2:01:57All right. So
2:02:00any question please?
2:02:03Any question please?
2:02:08Daen. So everyone with a question please
2:02:11ask now
2:02:14please ask if you have a question you
2:02:15can ask. If you don't have a question
2:02:18you are free to leave the class at your
2:02:20own pleasure. If you have a question ask
2:02:23ask and ask. Da Adam we start with you
2:02:26and then we go to Osain.
2:02:28>> Okay. uh in an uh in an instance uh uh
2:02:32where we are required to do uh notice of
2:02:34opinion in an exam and you do not you
2:02:39cannot recall uh the section under which
2:02:41it's brought I mean uh rule 77
2:02:44would you go with
2:02:47>> no
2:02:49you don't need to write that rule it's
2:02:51coming out it's not an application that
2:02:52rule uh the rule in terms of uh I mean
2:02:58the The law in terms in terms of that
2:03:00you need to indicate the rules you're
2:03:01coming under is only applicable under
2:03:03order 51 on applications. That is only
2:03:06applicable to applications. Okay?
2:03:09Anything that is on an application you
2:03:10don't need to write it there. You can
2:03:11write it if you want but you don't need
2:03:13to write it there. Okay? So in this
2:03:16notice of in this notice of appeal you
2:03:18don't have to write rule 77. It is
2:03:20inconsequential.
2:03:23Okay. Thank you. Thank you. Yes. Usain.
2:03:29>> Um, yes. I just wanted to ask um I
2:03:32remember we said that the court of
2:03:35appeal
2:03:37is um
2:03:39is an appetite court. It it has the
2:03:42ability to handle second appeals as from
2:03:46the subordinate courts. Um in the
2:03:49memorandum of appeal when an appeal
2:03:51emerges from the subordinate court, do
2:03:54we still say um the judge uh uh in fact
2:03:58and in law or in in law and in fact or
2:04:02just go in law ABCD.
2:04:06What did I say? I said we have first
2:04:08appeals and second appeals. A first
2:04:10appeal is appeal that is coming from the
2:04:13magistrate court to the high court for
2:04:16the first time. That is the first
2:04:17appeal. Secondly, we also have a first
2:04:20appeal that is coming from the high
2:04:22court to the court of appeal. It means
2:04:25if this matter was originally tested,
2:04:28sorry, not tested but tried by the high
2:04:29court. For instance, the jurisdiction
2:04:31was above 20 million, it was tried by
2:04:34the high court. So it means if you're
2:04:36appealing to the court of appeal, it is
2:04:38a first appeal. It means this is the
2:04:40first time you're appealing this matter.
2:04:41So if you are appealing a matter for the
2:04:43first time whether from the high court
2:04:45or from the court magistrate court that
2:04:47is a first appeal and you're allowed to
2:04:49say the magistrate had in law and in
2:04:53fact
2:04:54are we together until that point uh
2:05:01>> all right now we have second appeals
2:05:03now. Now second appeals are these
2:05:05appeals that are being appealed for the
2:05:08second time. It means it started from
2:05:12the lower court and the lower court is
2:05:14the magistrate court. You appealed on a
2:05:17question of law and fact to the high
2:05:19court. The high court dismissed your
2:05:22appeal. Maybe you are now not happy
2:05:24again. You're not happy and you're
2:05:26appealing for the second time. Now if
2:05:28you appeal for the second time, you can
2:05:30only appeal on a question of on a
2:05:32question of law. So you can only say the
2:05:36judge add in law not in fact add in law
2:05:40if it is a second appeal. Remember that
2:05:42you can also appeal from the high court
2:05:44to the court of appeal for the first
2:05:47time and that is still a first appeal. I
2:05:50hope that is clear. Uh same
2:05:54>> perfect.
2:05:56All right, Cynthia,
2:06:00>> are there instances where the
2:06:01application for state of execution is
2:06:04made in the same code um that has made
2:06:07the order?
2:06:09>> Yes, you can.
2:06:12We we talked about that in the last
2:06:13class. Were you in the last class?
2:06:17>> No, I wasn't. But I'll back towards
2:06:19getting
2:06:21>> Okay, so we said order 42 rule 6.
2:06:23Remember we talk about order rule six.
2:06:25Order 42 is appeals to the high court in
2:06:27the civil procedure rules. We said that
2:06:29if you are seeking leave, sorry, seeking
2:06:32a state of execution, you can either
2:06:35seek it in the court you are appealing
2:06:37from or the court you're appealing to.
2:06:40If this court denies you, you can go to
2:06:42the next. So if you are in the high
2:06:44court, you can seek it in the high court
2:06:46or you can go to the court of appeal.
2:06:47You are the one to decide. But normally
2:06:50because people want to have two bites
2:06:52cherry, what do they do? they will start
2:06:55from the same court. If they are denied
2:06:57then they have another opportunity to go
2:06:59to the next court. But remember if you
2:07:01go to the high court to the court of
2:07:03appeal and you denied there you can't
2:07:06come and get it back in the high court.
2:07:07So you start from the high court and go
2:07:09to the court of appeal or you start from
2:07:11the magistrate court and then you go to
2:07:12the you go to the high court. So you are
2:07:15allowed to seek it from where you're
2:07:17coming from or where you're going to. Is
2:07:19that clear?
2:07:23Yes, it is. Uh, so when you're when
2:07:26you're applying for a state of execution
2:07:28in like the court of appeal, at which
2:07:31stage? Okay. Yes, it's at the beginning,
2:07:33but is it after the not okay after the
2:07:35notice of appeal? So, does it come
2:07:37together with the instituting documents
2:07:39or how do you make that appear?
2:07:42>> What do you mean? How do you make that?
2:07:43That's what I've just explained the
2:07:45whole time I was in this class.
2:07:46>> Yes.
2:07:47>> And we've read rule 52B. It says after
2:07:50the institution of the notice of appeal,
2:07:53you can seek stay. There is no specific
2:07:55time for stay. Stay you can seek at any
2:07:57time but after the notice of appeal has
2:08:01been loed. So I'm not understanding what
2:08:03you mean. How do you seek that order?
2:08:05Maybe I'm not getting your question.
2:08:06>> I I think I've understood. Thank you.
2:08:09>> I'm not understood. What is your
2:08:11question? So that I also understand.
2:08:15My question was if you make if you want
2:08:17to make the application for state of
2:08:18execution in the court of appeal
2:08:20>> can you make it any time after after
2:08:23giving the notice of appeal and before
2:08:25filing the memorandum. to procedures.
2:08:29>> Yeah, but we discussed that. We said
2:08:31what was rule 52B saying that after the
2:08:34notice of appeal has been filed. But
2:08:36remember before you given that uh before
2:08:38you given that you must also demonstrate
2:08:41you've gone to court without a delay
2:08:44because if you delay until now uh this
2:08:48person has has started executing the
2:08:51matter is being heard then you are
2:08:53making an application for state
2:08:54execution. You not get it because now
2:08:56you are coming after serious delay.
2:08:58Remember last in the last class we
2:09:00mentioned this again and we said one of
2:09:02the grounds you have to demonstrate
2:09:04before you given a stay is that you have
2:09:07an arguable sorry you will suffer
2:09:10substantial loss. If you're not given
2:09:12this stay you will suffer substantial
2:09:14loss. And number two, you have come to
2:09:17court without reasonable delay. Under
2:09:20order 42 rule six, you've come to court
2:09:22for stay without delay. So yes, you can
2:09:25seek it at any time.
2:09:28Yes, you can seek it at any time you
2:09:30want,
2:09:32but without reasonable delay.
2:09:37Without reasonable delay. So if it is in
2:09:41the court of appeal, yes, the
2:09:43requirement is if you're seeking it in
2:09:45the court of appeal, you can seek it in
2:09:47the high court after the decision has
2:09:49been rendered or before you file a
2:09:51notice of appeal. But however, if you go
2:09:54to the court of appeal now, the first
2:09:55requirement is there must be a notice of
2:09:58a notice of appeal that you already
2:10:00file. So anytime after the filing of the
2:10:03notice of appeal
2:10:05together,
2:10:09>> yes, we are. Thank you.
2:10:11>> All right. S so I want us to join the
2:10:13class there. Unless it's a burning
2:10:15question, I will stop the recording.
2:10:18I will see you guys tomorrow at 2 for
2:10:21LPM and uh commercial
2:10:25uh transactions in the evening. Have a
2:10:29good time. Take care of yourself and see
2:10:33you
2:10:35tomorrow. Please get the class
2:10:37recording.

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