PART II - CIVIL APPEALS
6.
Notice of grounds of appeal
(1) Any appeal to the Court in a
civil cause or matter shall be brought by notice of
appeal in the Form I set out in Part I of the Schedule
to these Rules and shall be filed with the Registrar of
the court below.
(2) A notice of
civil appeal shall set forth the grounds of appeal and
shall state-
(a)
the address for service of the appellant;
(b)
whether the whole or part of the decision of the court
below is complained of and in the latter case the part
complained of;
(c)
the nature of the relief sought;
(d)
the name and address of counsel for the appellant, if
any, which address shall be an address for service;
(e) the names and
addresses of all parties affected by the appeal; and
(f) the particulars of
any misdirection or error in law, if so alleged.
(3) The appellant shall provide
sufficient number of copies of the notice of the appeal
for the use of the Justices of the Court and for service
on all parties directly affected by the appeal.
(4) The
grounds of appeal shall set out concisely and under
distinct heads the grounds upon which the appellant
intends to rely at the hearing of the appeal, without
any argument. or narrative and shall be numbered
seriatim; and where a ground of appeal is one of law the
appellant shall indicate the stage of the proceedings at
which it was first raised.
(5) No
ground of appeal which is vague or general in terms or
discloses no reasonable ground of appeal shall be
permitted, except the general ground that the judgment
is against the weight of evidence; and any ground of
appeal or any part of it which is not permitted under
this rule may be struck out by the Court on its own
motion or on application by the respondent.
(6) The appellant
shall not, without the leave of the Court, argue or be
heard in support of any ground of appeal that is not
mentioned in the notice of appeal.
(7) Notwithstanding sub
rules (1) to (6) of this rule the Court-
(a) may grant an
appellant leave to amend the ground of appeal upon such
terms as the Court may think fit; and
(b) shall not, in
deciding the appeal, confine itself to the grounds set
forth by the appellant or be precluded from resting its
decision on a ground not set forth by the appellant.
(8)
Where the Court intends to rest a decision on aground
not set by the appellant in his notice of appeal or on
any matter not argued before it, the Court shall afford
the parties reasonable opportunity to be d on the ground
or matter without re-opening the whole appeal.
7.
Appeals by leave
(1) An application for
leave to appeal under paragraph (b) of clause (1) of
article 131 of the Constitution shall be by motion on
notice in the Form 2 set out in Part I of the Schedule
to these Rules and shall be filed with the Registrar of
the court below within fourteen days of the date of the
decision against which leave to appeal is sought.
(2) An
application for special leave to appeal under clause (2)
of article 131 of the Constitution shall be by motion on
notice in the Form 3 set out in Part I of the Schedule
to these Rules, and shall be filed with the Registrar of
the Court within fourteen days of the refusal of the
court below to grant leave to appeal.
(3) Where
leave to appeal is granted the appellant shall file a
notice of appeal in accordance with the provisions of
these Rules.
(4) Notwithstanding sub
rules (1) to (3) of this rule an application for special
leave to appeal under clause (2) of article 131 shall be
entertained by the Court and the Court may grant leave
on such terms as the Court may consider fit having
regard to the circumstances of the case.
8. Time limits
(1) Subject to the
provisions of any other enactment governing appeals, a
civil appeal shall be lodged within-
(a) twenty-one days, in
the case of an appeal against an interlocutory decision;
or
(b) three months, in the
case of an appeal against a final decision unless the
court below or the Court extends the period within which
an appeal may be lodged.
(2) The periods specified in sub-rule (1)
shall-
(a) in
the case of an appeal as of right, be calculated from
the date of the decision appealed against; and
(b)
in any other case, be calculated from the date on which
leave is granted.
(3) A civil appeal is lodged on the date the
notice of appeal is
filed.
(4) An application for the extension of time
within which to lodge an appeal in respect of a final
decision shall not be made after the expiration of three
months from the end of the periods prescribed by this
rule within which an appeal may be lodged.
(5) An application for the extension of time
within which to lodge an appeal shall be supported by an
affidavit stating-
(a)
that leave has been granted where necessary, and the
date of the leave;
(b)
good and substantial reasons for the application; and.
(c) grounds of appeal which, prima facie, show good
cause that the appeal has a reasonable chance of
success.
(6) Subject to sub-rule (4) of this rule
where a person has applied to the court below for an
extension of time within which to lodge a civil appeal
and after a period of not less than one month from the
date of the application the court below -
(a)
has not
granted or has refused to grant the application; or
(b) has dismissed the
application
the applicant may move
the Court to have the application determined by the
Court.
9.
Notice of cross appeal
(1) A respondent who
intends to cross appeal shall give notice of his
intention to do so with in fourteen days of service upon
him of the notice of appeal.
(2) Rule 6 of
these Rules shall, with such modification as may be
necessary apply to a notice of a cross appeal.
10.
Service of notice of appeal
(1) The Registrar of the
court below shall, after a notice of appeal has been
filed, cause a copy of the notice to be served upon each
of the parties mentioned in the notice of appeal as
directly affected by the appeal.
(2) The Court
may direct notice to be served on any party to the
original action or other proceedings or upon any person
not a party to the original action or other proceedings,
and may adjourn the hearing of the civil appeal upon
such terms as may be just, and make such order as might
have been made if the person served with the notice had
originally been a party to the appeal.
(3) Any person
served with a copy of a notice of appeal under this rule
may, within seven days of the service, file a notice of
appearance on his own or by counsel, and shall, in the
notice of appearance give particulars of his address and
the address of his counsel, if any, which shall be an
address for service.
(4)
Notwithstanding anything to the contrary contained in
this rule, a notice of appearance or any other document
relating to a civil appeal, which requires service on
any person, may be filed with the Registrar of the court
below for service.
(5) The copy
for service of any notice or other document filed in
accordance with sub-rule (4) of this rule, may be given
by the Registrar of the court below to the party filing
it or to his counsel who may serve it himself or cause
it to be served by his duly authorised agent, if service
by an officer of the Court is likely to be difficult or
unduly delayed.
11.
Settling record of appeal
(1) When a civil appeal
is lodged with the Court, the Registrar of the Court
shall-
(a) issue a summons in
the Form 4 set out in Part I of the Schedule to these
Rules requesting the parties to appear before him within
fourteen days of the service of the notice to settle the
documents to be included in the record of appeal; and
(b) settle and sign and
in due course file a list of the documents, whether any
of the parties, attend to the summons or not.
(2) The Registrar of the court
below and the parties to the action shall-
(a) endeavour to exclude
from the record of appeal any document which is not
relevant to the subject matter of the appeal and
generally reduce the bulk of the record of appeal as far
as practicable; and
(b) take special care to
avoid duplication of documents and unnecessary
repetition of headings and other merely for- mal parts
of documents,
but any relevant
document copies of which are not included shall be
enumerated in a list to be attached to the record.
(3) Where the
Registrar of the court below or any party objects to the
inclusion of a document on the ground that it is
unnecessary or irrelevant, and any party or the other
party, in spite of the objection insists upon it being
included, the document shall be included and the record
of appeal shall, with a view to the subsequent
adjustment of costs, indicate in an index of papers or
otherwise the fact of the objection and the party who
objected to the inclusion of the document.
(4) The appellant
shall, within one month of settling the record of
appeal, deposit with the registrar of the court below a
sum fixed to cover the estimated expenses of making up
and forwarding the record of appeal calculated at the
full cost of one copy for the appellant and one quarter
cost for each of the copies to be forwarded for the use
of the Court.
12.
Security for costs
(1) At the time of
settling the record of appeal the Registrar of the court
below shall notify the appellant of the sum fixed by him
to be deposited as security for which recognizance shall
be given by bond in Form 5 set out in Part I of the
Schedule to these Rules, with one or more sureties as
the Registrar may direct, for the due prosecution of the
appeal or for the payment of any costs which may be
ordered to be paid by the appellant.
(2)The security for
costs or the bond shall be deposited or executed within
one month of the notification but this period may be
extended by the Registrar of the court below for reasons
which seem to him sufficient
(3) The Court may, where
necessary require security for costs or for the
performance of the orders to be made on appeal, in
addition to the sum determined under this rule
13.
Exhibits
(1) Subject to this
rule, each party shall, before or at the time of
settling the record of appeal, deliver to the Registrar
of the court below any exhibit or thing in the case or
which were tendered as exhibits and
.rejected, and all other relevant documents which were
produced or put in by the party at the trial and which
are in the party's custody or are under his control.
(2) Where any party
finds it difficult to comply with sub-rule (1) because
of the nature of the document or exhibit or because it
is in the possession of a third party or for any other
sufficient reason, the party may apply to the Registrar
of the court below for directions.
(3) The Registrar of the
court below may either of his own motion or upon
application, give any direction he thinks fit, whether
dispensing with the provisions of this rule or modifying
its application in any way or for securing compliance
with it.
(4) Exhibits and other
documents or things delivered to the court below
pursuant to this rule shall remain in the custody of the
court be- low until the record of appeal has been
prepared, and shall then be for- warded with the record
of appeal to the Registrar and shall remain in the
custody of the Court
until the final determination of the appeal.
(5) The Court or the
Registrar may, subject to such conditions as it or he
may impose, allow the return of any exhibit or document
to any party pending the hearing of the appeal.
14.
Transmission of record
(1) When the record of
appeal is ready the Registrar of the court below shall
cause notice to be served on parties to the appeal in
the Form 6 set out in Part I of the Schedule to these
Rules.
(2) The Registrar of the
court below shall transmit to the Registrar the record
of appeal together with-
(a) a certificate of
service, in the Form 7 set out in Part I of the Schedule
to these Rules, of the notice of appeal;
(b) a certificate, in
the Form 8 set out in Part I of the Schedule to these
Rules, that the provisions of these Rules have been
complied with; and
(c) the docket or file of the cause
or matter in the court below containing all papers or
documents filed by the parties in connection with the
cause or matter.
(3) The Registrar shall,
on receipt of the record of appeal, enter the appeal in
the appropriate register as required by these Rules.
15.
Stating case
(1) The appellant
shall,-
(a) within three weeks
of being notified that the record is
ready; or
(b)
within such time as the Court may upon such terms as it
may determine,
file with the Registrar
a statement of his case based on the grounds of appeal
as set out in the notice of appeal.
(2) Where the appellant
does not file the statement of his case in accordance
with sub-rule (1) the Registrar shall certify this fact
to the Court which may upon that order the appeal to be
struck out.
(3) The Registrar shall,
as soon as practicable after the filing of the
appellant's statement of case, cause copies of the
statement of case to be served on the respondent and any
other party to the appeal.
(4)
A party upon whom an appellant's statement of case is
served shall, if he wishes to contest the appeal file
the statement of his case in answer to the appellant's
statement of case within three weeks of the service, or
within such time as the Court may upon such terms as it
may determine direct.
(5) The appellant may,
within fourteen days of the service on him of the
respondent's statement of case, file with the Registrar
a reply to the respondent's statement of case.
(6) The statement of
case of each party to the appeal-
(a) shall set out the full case and arguments to be
advanced by the party including all relevant authorities
and references to the decided cases and the statute law
upon which the party intends to rely; and
(b) in
the case of a respondent may include a contention that
the decision of the court below be varied.
(7) Notwithstanding
anything to the contrary contained in this rule counsel
may agree to submit a joint statement of case for the
determination of the appeal before the Court.
(8) For the avoidance of
doubt where there is more than one appeal, the statement
of the case of each party shall be in respect of a11 the
appeals concerned.
(9) Where a respondent
does not file a statement of his case and does not agree
jointly to state a case pursuant to this rule, he shall
not be a11owed to be heard at the hearing of the appeal
except as to the question of costs.
(10) At any time after the publication of the short list
containing
the particulars of
appeal, but not less than seven days before the hearing,
each party or his counsel shall submit to the Court a
list of the decided cases and the statute law on which
he intends to rely at the hearing and shall serve a copy
of any such list on the other parties.
(11) Notwithstanding anything to the contrary contained
in these
Rules, any party to a
civil appeal may at any time before judgment apply to
the Court to amend any part of the statement of his case
and the Court may having regard to the interest of
justice and to a proper determination of the issue
between the parties, allow the amendment on such terms
as it may consider fit.
16.
Control of proceedings during pendency of appeal
(1) After
the transmission of the record of appeal from the court
below to the Court, the Court shall be seized of the
appeal and any application relating to the appeal shall
subsequently be made to the Court.
(2) Any application
filed in the court below after the transmission of the
record of appeal shall be transmitted to the Court.
17.
Notice of preliminary objection to be filed
(1) Where a respondent
has not indicated in his statement that he intends to
rely upon a preliminary objection at the hearing of a
civil appeal he shall, before raising such objection at
the hearing, give fourteen clear days notice to the
appellant in the Form 9 set out in Part I of the
Schedule to these Rules, setting out in full the grounds
of objection and the arguments in support of his
objection.
(2)
The appellant shall, within seven days of the service of
the notice on him, file any reply he may have to the
grounds of objection and the arguments in support of the
reply.
(3)
Where a respondent or an appellant fails to comply with
this rule the Court may refuse to entertain the
objection or the reply or may adjourn the hearing and
may make any other order as it considers fit.
18.
Withdrawal of appeal
(1) Subject to rule 9 of
these Rules where an appellant fi1es with the Registrar
a notice of withdrawal of his appeal or of any part of
it in the Form 10 set out in Part I of the Schedule to
these Rules, his appeal shall be considered dismissed to
the extent of the notice of withdrawal
.
(2) Copies of the notice
of the withdrawal shall be served on any
of
the parties with regard to whom the appellant wishes to
withdraw his appeal, and any party so served shall be
precluded from claiming any costs incurred by him after
the service unless otherwise ordered by the Court
.
(3) A party served
with a notice of withdrawal may on notice to the
appellant, apply to the Taxing Officer for an order to
recover such costs as he may necessarily or reasonably
have incurred prior to the service on him of the notice
of withdrawal together with his costs incurred for the
purposes of obtaining the order and for attending the
Court.
19
Non-compliance with conditions of appeal
(1) Where an appellant
has not fulfilled the conditions to be complied with by
him in accordance with these Rules, the Registrar of the
court below shall certify that fact to the Court, in the
Form 11 set out in Part I of the Schedule to these
Rules, and the Court may thereupon order that the appeal
be dismissed with or without costs.
(2) An appellant whose
appeal has been dismissed pursuant to
this rule may apply by
motion on notice to have his appeal restored, and the
Court may, for good and sufficient cause, order that the
appeal be restored upon such terms as it may consider
fit.
(3) Notwithstanding
sub-rules (1) and (2) of this rule, an appellant may
apply to the Court for an extension of time within which
to fulfil the conditions to be complied with in
accordance with these Rules and the Court may, for good
and sufficient cause shown, grant an extension of time
subject to such conditions as the Court may impose.
20
Effect of appeal
(1) A civil appeal shall
not operate as a stay of execution or of proceedings
under the judgment or decision appealed against except
in so far as the Court or the court below may otherwise
order.
(2) Subject to these Rules and to any other
enactment governing appeals an application for stay of
execution or of proceedings shall first be made to the
court below and if that court refuses to grant the
application, the applicant shall be entitled to, repeat
the application before the Court for determination.
21.
Determination of doubts as to finality of judgment
Whenever any doubt
arises as to whether any judgment, order, decree or
decision is final or interlocutory, the question shall
be determined by the Court.
22.
Interlocutory judgment not to prejudice appeal
An interlocutory
judgment, decree or order from which there has been no
appeal shall not operate to bar or prejudice the Court
from giving its own decision upon the appeal as may seem
just.
23.
General powers of the Court 24.
(1) The
Court may, after considering the statement of the case
of each of the parties to the appeal and any other
papers or arguments filed by the parties, decide to
determine the appeal and give judgment in Court on a
fixed date without further argument or may appoint a
date on which the parties shall appear before the Court
for the hearing of further arguments.
(2) Where the Court
decides to hear oral arguments the appellant shall,
unless the Court otherwise directs, first argue his case
and the respondent shall, unless the Court otherwise
directs be entitled to reply.
(3) The Court may in
hearing any civil appeal make any order necessary for
determining the real issue or question in controversy
between the parties.
24.
Non-appearance of appellant
(1) Where an appellant
fails to appear when his appeal is called for hearing,
the Court may-
(a)
proceed to hear the appeal and consider the case on the
basis of the case stated by the appellant and allow or
dismiss the appeal with or Without costs; or
(b)
strike out the appeal with or without costs.
(2) Where an
appeal has been struck out owing to the non- appearance
of the appellant the Court may, on the application of
the appellant made within one month of the striking out
and for sufficient cause shown by the appellant, direct
the appeal to be re-listed for hearing, on such terms as
it may consider just.
25.
Non-appearance of respondent
(1)
Where the respondent fails to appear when the appeal is
called for hearing, the Court may proceed to hear the
appeal.
(2) Where an appeal has
been heard in accordance with sub-rule (1) of this rule
and any judgment given is adverse to the respondent, he
may within one month of the delivery of the judgment
apply to the Court to have the judgment set aside and
the appeal re-heard, on such terms as the Court may
direct.
26.
Application to re-list or set aside
An application under
rule 24 or 25 of these Rules shall be by motion on
notice accompanied by an affidavit setting out the full
reasons and grounds for the application.
27.
Costs in civil appeals
(1) Where the
costs of a civil appeal are allowed, they may either be
determined by the Court at the time when the judgment is
given or may be ordered to be taxed.
(2) There shall be a
Taxing Officer who shall tax all costs according to a
scale to be laid down by law.
(3) A person aggrieved
by an order, decision or ruling of the Taxing Officer
may apply to a single justice of the Court to set aside
or vary the order, decision or ruling and to make any
other order as the judge may think fit.
(4) An application made
under sub-rule (3) shall be by motion on notice
supported by an affidavit, and notice of the motion
shall be served on the Taxing Officer and on all parties
that have interest in the matter
,
28.
Execution of judgment by court below
Where the Court directs
any judgment or order to be enforced by any other court,
certificate in the Form 12 set out in Part I of the
Schedule to these Rules under the seal, of the Court and
the hand of the presiding justice setting out the
judgment or order shall be transmitted by the Registrar
to that other court, and the latter shall enforce the
judgement or order in the terms of the certificate.
29.
Appeals in prerogative orders and writs
The provisions of these
Rules relating to civil appeals shall, with such
modifications as the Court may determine, apply to an
appeal brought to the Court under clause (3) of article
33 of the Constitution.
30.
Appeals in chieftaincy matters
The provisions of these
Rules relating to civil appeals shall, with such
modifications as the Court may determine, apply to the
hearing by the Court of an appeal from the National
House of Chiefs brought to the Court under clause (4) of
article 131 or clause (1) of article 273 of the
Constitution.
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