KENYA Law and Practice Contributed by: Ahmednasir Abdullahi, Asli Osman, Peter Muchoki and Elizabeth Wangui Mungai, Ahmednasir Abdullahi Advocates LLP
10.3 Procedure for Taking an Appeal Appeals from subordinate courts to the High Court are required to be filed within 30 days from the date of the judgement or order appealed against. The appel- lant must file a Memorandum of Appeal outlining the grounds of appeal and serve the Memorandum on the respondent. A Record of Appeal, which includes the Memorandum of Appeal together with a certified copy of the proceedings, and any other relevant documents are filed. Appeals to the Court of Appeal are instituted by filing a Notice of Appeal within 14 days of the High Court’s decision. Similarly, a Record of Appeal comprising the Memorandum of Appeal outlining the grounds of appeal alongside the certified copies of the proceed- ings and relevant documents are filed within 60 days of filing the Notice of Appeal. Appeals to the Supreme Court are limited to matters involving constitutional interpretation or issues of gen- eral public importance. If the appeal is being filed as a matter of right, a party is required to file a Notice of Appeal within 14 days of the Court of Appeal’s decision. If the appeal is not as of right, a party must obtain certification from the Court of Appeal or the Supreme Court that the appeal involves a matter of general public importance. 10.4 Issues Considered by the Appeal Court at an Appeal In a first instance appeal of matters from subordinate courts, the High Court sitting in appeal reappraises the evidence as if hearing the case afresh, drawing its own inferences without needing to defer entirely to the trial court’s findings. In appeals from the High Court to the Court of Appeal, the Court of Appeal examines the record for errors but intervenes only if the lower decision was wrong in principle, unsupported by evidence, or unjust due to procedural flaws. Appeals to the Supreme Court are strictly on points of law of general public importance or constitutional interpretation. The Supreme Court’s appellate juris- diction is narrow and exceptional, intended to deal with matters of constitutional interpretation or applica-
tion, and issues of general public importance certified by the Court of Appeal or, in limited cases, by the Supreme Court itself. 10.5 Court-Imposed Conditions on Granting an Appeal In civil matters, where an appeal is filed against a decree or order of a lower court, the court can impose conditions when granting a stay of execution pending appeal. Typical conditions include: • security for the due performance of the decree, usually in the form of a monetary deposit or a bank guarantee; • timelines for filing the record of appeal or submis- sions, to avoid dilatory tactics; and • conditions preserving the subject matter of the dis- pute, such as injunctions or maintenance of status quo orders. Similarly, where an appeal is filed out of time, the court may extend the filing period on such terms as it deems just, which may include payment of costs, compliance with procedural directions or deposit of part of the decretal sum. In criminal appeals, the court may impose conditions when granting bail pending appeal under Section 356 of the Criminal Procedure Code, such as sureties, deposit of travel documents or reporting periodically to a designated authority to ensure attendance during appeal hearing. 10.6 Powers of the Appellate Court After an Appeal Hearing Under Section 78 of the Civil Procedure Act, the appellate court has all the powers and duties of the court of original jurisdiction, including the power to: • determine a case finally, where the evidence on record is sufficient; • remand a case, ordering the lower court to take additional evidence or re-try the matter; • frame issues and refer them for trial, where factual questions were not properly addressed at first instance; • take additional evidence itself, or direct it to be taken by the trial court; and
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