Kwoba v Barasa Mariko and 3 Others (CIVIL APPEAL NO 0013 OF 2023)
Observed later treatment
No later-treatment classification is recorded for this judgment.
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Holding
An appeal filed more than thirty days after the record of proceedings was certified to the appellant, without leave for extension of time, is incompetent and must be dismissed. Time begins to run only when the record becomes available to the intending appellant. Where leave is required but not obtained, the appeal cannot proceed.
Outcome
Appeal dismissed summarily as incompetent for being filed out of time without leave
Facts
The appellant sued respondents in the Chief Magistrate's Court for a declaration of customary ownership over 35 acres of land in Buhera Village, alleging he inherited the land from his late father who died in 2004. The respondents defended that the first and second respondents inherited the land from their father who had purchased it from the appellant's father in 1984, more than 30 years prior, and that the third and fourth respondents were bona fide purchasers from the first and second respondents. After trial including a locus visit, the Chief Magistrate dismissed the appellant's suit with costs on 22 September 2022. The appellant requested certified proceedings on 26 September 2022, received them on 24 March 2023, and filed the appeal on 6 June 2023—73 days after certification.
Issues
- Whether the appeal was filed within the statutory time limit prescribed under Section 79(1)(a) of the Civil Procedure Act.
- Whether the appeal is competent having been filed 73 days after the record of proceedings was certified without seeking leave for extension of time.
Orders
- Preliminary objection upheld.
- Appeal dismissed summarily.
- Costs awarded to the Respondents.
Rules and key headnotes
Legislation cited (2)
- Civil Procedure Act Cap.71 s.79(1)(a)
- Civil Procedure Act Cap.71 s.79(2)
Cases cited (3)
- Sekabira Herbert v Suuna Mulema and Another (HCMA No. 186 of 2022)
- Makhangu v Kibwana [1995-1998] 1 EA 175
- Dr. Sheikh Ahmed Muhammed Kisuule v Greenland Bank (In Liquidation) (Supreme Court Civil Appeal No. 11 of 2010)
Full judgment
The original judgment as reported. Read the original PDF before relying on any passage.