Quote from Lawyer on June 16, 2025, 8:01 am

The appeals process in Kenya’s civil court system is a critical mechanism for parties seeking to challenge decisions made by lower courts, ensuring that justice is served through a hierarchical review by superior courts. Governed primarily by the Civil Procedure Act (Cap 21) and the Civil Procedure Rules, 2010, as well as the Court of Appeal Rules, 2010, the process is structured to promote fairness, efficiency, and adherence to legal standards. This article provides a detailed overview of the appeals process, including the procedural steps, timelines, grounds for appeal, and key considerations for litigants in Kenya.

Legal Framework for Appeals

The appeals process in Kenya is regulated by several legal instruments, with the Civil Procedure Act (Cap 21) serving as the primary statute for civil procedure in subordinate courts and the High Court. The Civil Procedure Rules, 2010, particularly Order 42, outline the procedural requirements for appeals. For appeals to the Court of Appeal, the Court of Appeal Rules, 2010 apply, supplemented by Practice Directions issued by the judiciary to standardize processes. Additionally, the Constitution of Kenya, 2010 (Chapter 10) establishes the hierarchical structure of courts, defining the jurisdiction of the Supreme Court, Court of Appeal, High Court, and subordinate courts.

The civil court system in Kenya is hierarchical, comprising:

• Subordinate Courts: Magistrates’ Courts, Kadhis’ Courts, and other tribunals.

• Superior Courts: High Court, Employment and Labour Relations Court (ELRC), Environment and Land Court (ELC), Court of Appeal, and Supreme Court.

Appeals generally progress from subordinate courts to the High Court, then to the Court of Appeal, and, in limited cases, to the Supreme Court, depending on the nature of the case and the grounds for appeal.

Grounds for Appeal

Under the Civil Procedure Act (Cap 21) and related jurisprudence, parties may appeal a civil court decision on specific grounds, which vary depending on the court to which the appeal is made. The grounds for appeal are critical, as they determine whether the appellate court will entertain the case.

Appeals from Subordinate Courts to the High Court

Section 79G of the Civil Procedure Act allows appeals from subordinate courts to the High Court on questions of law or fact. Common grounds include:

• Misdirection or error in law: The trial court misapplied or misinterpreted the law.

• Error in fact: The court’s findings of fact were not supported by the evidence presented.

• Procedural irregularities: For example, failure to adhere to due process or natural justice principles.

• Jurisdictional errors: The court acted outside its legal authority.

However, for appeals from specialized courts like the Small Claims Court, Section 38 of the Small Claims Court Act restricts appeals to points of law only, limiting challenges to factual findings unless they demonstrate a clear legal error.

Appeals from the High Court to the Court of Appeal

Appeals to the Court of Appeal are governed by the Appellate Jurisdiction Act and the Court of Appeal Rules, 2010. Under Section 72 of the Civil Procedure Act, appeals from the High Court to the Court of Appeal are limited to questions of law. Common grounds include:

• Misinterpretation of the law: The High Court applied incorrect legal principles.

• Procedural errors: Such as denying a party the right to be heard.

• Jurisdictional overreach: The High Court exceeded its authority.

The Court of Appeal Practice Direction - Civil Appeals and Applications, 2015 emphasizes that grounds of appeal must:

• Be concisely stated in numbered paragraphs.

• Identify specific errors made by the lower court, supported by references to evidence or legal authority.

• Avoid extensive quotations from documents or authorities.

• Be cross-referenced to relevant pages in the record of appeal.

Appeals to the Supreme Court

The Supreme Court has limited appellate jurisdiction under Article 163(4) of the Constitution of Kenya, 2010. Appeals to the Supreme Court are restricted to cases involving:

• Interpretation or application of the Constitution.

• Matters of general public importance, certified by the Supreme Court or the Court of Appeal.

The Supreme Court does not entertain appeals on factual disputes unless they raise significant constitutional issues.

Appeals Process and Timelines

The appeals process involves several procedural steps, each governed by strict timelines to ensure expeditious resolution of disputes. Below is a step-by-step guide to appealing a civil court decision in Kenya.

1. Filing a Notice of Appeal

The first step in initiating an appeal is filing a Notice of Appeal, which signals the intention to challenge the lower court’s decision.

• Timeline:

  • For appeals from subordinate courts to the High Court, the Notice of Appeal must be filed within 30 days from the date of the decree or order, as stipulated under Section 79G of the Civil Procedure Act. This period excludes time certified by the lower court as necessary for preparing and delivering a copy of the decree or order.

  • For appeals to the Supreme Court, the Notice of Appeal must be filed within 14 days from the date of the judgment or ruling, as per the Supreme Court Rules.

• Procedure:

  • The Notice of Appeal is filed with the registrar of the court or tribunal from which the appeal originates, and a copy is transmitted to the registrar of the appellate court.

  • The notice must be served on all directly affected parties within 7 days of filing.

  • The notice should comply with Rule 77 of the Court of Appeal Rules, 2010 for civil appeals to the Court of Appeal, specifying the decision being challenged and the grounds for appeal.

2. Filing the Memorandum of Appeal and Record of Appeal

After filing the Notice of Appeal, the appellant must prepare and file the Memorandum of Appeal and the Record of Appeal.

• Memorandum of Appeal:

  • This document outlines the grounds of objection to the lower court’s decision, specifying errors in law or fact.

  • It must be concise, numbered consecutively, and signed by the appellant or their advocate, as per Order 42, Rule 1 of the Civil Procedure Rules and Rule 84 of the Court of Appeal Rules.

  • For appeals to the High Court, the memorandum must be accompanied by a certified copy of the decree unless the court dispenses with this requirement.

• Record of Appeal:

  • The Record of Appeal includes:

    • An index page.

    • Copies of pleadings.

    • Certified typed record of trial court proceedings.

    • The judgment and decree.

    • Lists of exhibits and witnesses.

  • Pages must be numbered at the bottom right corner, with every tenth line numbered in the right margin. For voluminous records (over 500 pages), they must be bound in separate volumes.

  • Timeline: The Record of Appeal must be filed within 60 days of lodging the Notice of Appeal, unless extended by the court under Rule 83 of the Court of Appeal Rules.

3. Service of Documents

• The Memorandum of Appeal and Record of Appeal must be served on the respondent within 21 days after filing, as per Order 42, Rule 13(1) of the Civil Procedure Rules.

• The respondent may file a Notice of Cross-Appeal (under Rule 95 of the Court of Appeal Rules) or a Notice of Grounds for Affirming the Decision (under Rule 96) within 14 days of being served with the appeal documents.

• While the Civil Procedure Act does not explicitly outline timelines for cross-appeals, case law suggests they should be filed within a reasonable time after service of the memorandum of appeal, or the appellant must seek court leave to file out of time.

4. Case Management and Directions

• After filing the appeal, the appellant must cause the matter to be listed for directions before a judge within 30 days, as required by Section 79B of the Civil Procedure Act for appeals to the High Court.

• At the Case Management Conference, the court may issue directions on:

  • The scope of written or oral submissions.

  • Limiting the length of submissions (often by word count).

  • Scheduling the hearing.

• For appeals to the Court of Appeal, the court may set specific timelines for filing submissions and authorities, as per the Court of Appeal Practice Direction, 2015.

5. Stay of Execution (Optional)

If the appellant seeks to prevent the enforcement of the lower court’s decision (e.g., a money decree), they may apply for a stay of execution under Order 42, Rule 6 of the Civil Procedure Rules or Rule 5(2)(b) of the Court of Appeal Rules.

• Conditions:

  • The application must demonstrate that substantial loss will result without a stay.

  • The appeal must be arguable and not frivolous.

  • The application must be made without unreasonable delay.

  • The appellant may be required to provide security (e.g., deposit the decretal amount).

• Timeline: The application can be made to the appellate court even if no prior application was made to the lower court.

6. Hearing and Determination

• The appeal is heard based on the Record of Appeal, written submissions, and, where permitted, oral arguments.

• The appellate court may:

  • Uphold the lower court’s decision.

  • Reverse or vary the decision.

  • Order a retrial or remit the case to the lower court.

  • Make any other order deemed just.

• The court has the same powers as the court of original jurisdiction to address issues raised in the appeal, as per Section 78 of the Civil Procedure Act.

7. Extension of Time

If timelines are missed, the appellant may apply for an extension of time under Section 79G of the Civil Procedure Act (for High Court appeals) or Rule 4 of the Court of Appeal Rules. The court exercises discretion based on:

• The length of the delay.

• The reason for the delay (e.g., financial constraints, advocate’s error).

• The chances of the appeal succeeding.

• Potential prejudice to the respondent.

The applicant must demonstrate good and sufficient cause for the delay. For example, in Paul Musili Wambua v Attorney General & 2 Others [2015] eKLR, the Court of Appeal emphasized that discretion must be exercised based on reason, not caprice.

Key Considerations for Litigants

1. Comprehensive Grounds: The Memorandum of Appeal must comprehensively list all grounds, as new grounds cannot be introduced without court leave.

2. Security for Costs: For money decrees, appellants may need to deposit the decretal amount or provide security, as required by the court.

3. Document Legibility: All filed documents must be legible, typed (except for pro se appellants in criminal appeals), and comply with formatting rules (e.g., A4 paper, numbered pages).

4. Jurisdictional Limits: Appeals to the Court of Appeal and Supreme Court are restricted to questions of law or constitutional issues, respectively, requiring careful framing of grounds.

5. Timely Action: Strict adherence to timelines is crucial, as delays may prejudice the appeal unless justified.

6. Legal Representation: While parties can represent themselves, engaging an advocate familiar with appellate procedures can enhance compliance and success.

Challenges and Practical Tips

• Delays in Obtaining Records: Obtaining certified copies of judgments or decrees can delay filing. Appellants should promptly request these from the lower court and seek certification of time taken to exclude it from the 30-day timeline.

• Cost Implications: Appeals can be costly, especially if security for costs is required. Litigants should assess the financial viability of pursuing an appeal.

• Merit of Appeal: Courts may dismiss appeals lacking arguable points of law, particularly in specialized jurisdictions like the Small Claims Court.

• Judicial Discretion: Outcomes of applications for extensions or stays depend on judicial discretion, requiring compelling evidence and arguments.

Conclusion

Appealing a civil court decision in Kenya is a structured process governed by the Civil Procedure Act (Cap 21), Civil Procedure Rules, 2010, and Court of Appeal Rules, 2010. It requires meticulous adherence to procedural steps and timelines, starting with filing a Notice of Appeal within 30 days (High Court) or 14 days (Supreme Court), followed by the Memorandum and Record of Appeal. Grounds for appeal must be clearly articulated, focusing on errors in law, fact, or procedure, and tailored to the appellate court’s jurisdiction. By understanding the process, timelines, and requirements, litigants can navigate the appeals system effectively, seeking redress while upholding the principles of justice and fairness enshrined in Kenya’s legal framework.