APPEALS

A legal process by an aggrieved party of asking a higher court to review a decision of a lower court to
review a decision of a lower court or trial court after a dissatisfaction of judgement made. Appeals are
provided under article 50 of the constitution as one of the elements of fair hearing.Appeals are
governed by order 42 of the civil procedure rules and section 79 of the civil procedure act.

Article 50(1) of the constitution state ;

1)Every person has the right to have any dispute that can be resolved by the application of law be
decided in a fair and public hearing before a court or if appropriate another independent and impartial
tribunal or body

2)If convicted to appeal to or apply for review by a higher court as prescribed by law

Procedure for the application of appeals

Appeal should be entered before lapse of 30 days

Documents required in making an appeal

A notice of motion is not required to be filed to the high court.

Memorandum of Appeal

It shall state the grounds of appeal

Issued raised of both facts and law

If the judge admits the appeal

A record of appeal is filed within 21 days

It contains; notice of admission

Pleadings

Proceedings

Judgement

Appeals of a decree

Order 45 and Order 75 provides for orders appealed as a right. Other requires application by leave

Two modes of hearing appeals, orally or by written submissions

If period for appeals has expired one has to give a certificate of delay. Certificate of delay shows that
one asked for and paid for copies of proceedings and judgements that were not given on time.

One can make an appeal as a pauper with the leave of court where they are not required to pay court
fees while filling a pleading to enhance access to justice pursuant to article 48 of the constitution.

Stay of execution
The appeal does not Operate as a stay of execution.The judgement debtor can make an application for
stay of execution by a notice of motion under order 42 rule 6 court will consider the following pursuant
to the case of Nken vs Holder

1. Where the stay applicant has made a strong case.

2. Whether the applicant will be irreparably injured
3. Whether the issuance of a stay order will substantially injure other parties interested in
proceedings
4. Where public interest lies

Dismissal of appeals

1. Summary dismissal under section 79B. Court in the first instance of perusing a record of appeal
finds there are no sufficient grounds of interfering with the decree
2. Default dismissal. If the appellant fails to appear court can dismiss the appeal.

Powers of the appellate court

The powers are provided under section 78 of the civil procedure act as follows

1. Determine the case finally

2. Remand a case. For instance if the case was decided on a preliminary point without a full
hearing.
3. Frame issues and refer them for trial
4. To take additional evidence or require them to be taken by the trial court.
5. Order for a new trial.

Whether Kibwana should seek an appeal

Mr Kibwana should seek an appeal on the ground of an error of law. The concept of time limitation due
to adverse possession is a matter of law under the limitation of action act.Mr Kibwana should make an
application on the stay of execution since he has a strong case likely to succeed on merits,he may suffer
irreparable damage if execution takes place as he will be thrown out of the encroached land and other
parties shall not suffer substantial injury in the interests of meeting the ends of justice.

BIBLIOGRAPHY

Constitutions

Constitution of Kenya 2010

STATUTES

Civil procedure act cap 21

Civil procedure rules