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C.I. 16         

       SUPREME COURT  RULES  1996

 

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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