[2005] KEHC 888 (KLR)
The court held that the absence of the original record and certified copies of judgment, proceedings, and exhibits prevents the appellate court from admitting the appeal and complying with the procedural requirements under Section 79B of the Civil Procedure Act and Order 41 rules 8A and 8B of the Civil Procedure...
Source-derived case information.
- Citation
- [2005] KEHC 888 (KLR)
- Parties
- Appellant: A.M. Ogeta; Respondent: Joyce Wamutira Nyamu
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 83 of 2004
- Procedural Posture
- Civil Appeal / Ruling on Notice of Motion to Strike Out Appeal and Hear Cross Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Appeal Admission, Court Records, Striking Out Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
A.M. Ogeta
Appellant
Joyce Wamutira Nyamu
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice of Motion to Strike Out Appeal and Hear Cross Appeal
Legal Issues
- 1 Whether the appeal should be struck out in the absence of the original court record and certified copies of judgment, proceedings, and exhibits.
- 2 Whether the cross appeal can be heard before the appeal is admitted and procedural requirements are met.
Ratio Decidendi
The court held that the absence of the original record and certified copies of judgment, proceedings, and exhibits prevents the appellate court from admitting the appeal and complying with the procedural requirements under Section 79B of the Civil Procedure Act and Order 41 rules 8A and 8B of the Civil Procedure Code. Therefore, the application to strike out the appeal and hear the cross appeal was found to lack merit, as the necessary procedural steps for hearing the appeal had not been fulfilled. The application was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application to strike out the appeal and hear the cross appeal is dismissed with costs.
Full Case Text
Judgment text and source record
9 paragraphs
IN THE HIGH COURT OF KENYA AT MOMBASA Civil Appeal 83 of 2004 A.M. OGETA ……..…………………………..…………………………. APPELLANT VERSUS JOYCE WAMUTIRA NYAMU………………………………………. RESPONDENT R U L I N G
This appeal was filed on 26. 7.3005 challenging the decision of Hon. Mrs U.P. Kidula Chief Magistrate in CMCC No. 4253 of 2003. on 4. 8.04 the respondent filed a cross appeal.
On 17. 9.2004 the Deputy Registrar High court called for original record, certified copies of judgement, proceedings and exhibits. To-date the same have not been made available to the High Court Registry.
On 21st October 2004, this Notice of Motion was filed seeking to strike out appeal and to hear the cross appeal. Without the court record the Appellate Court is not in a position to comply with Section 79B of Civil Procedure Act.
At the moment the appeal is not admitted to hearing. After admission the court has to comply with Order 41 rule 8A and 8B civil Procedure Code.
Unless these three steps are taken by the Court – the appeal cannot come to a hearing.
In these circumstances I find no merit into his application and the same is dismissed with costs.
Dated 29th July 2005.
J.N. KHAMINWA JUDGE