[2005] KEHC 120 (KLR)
The court held that there is no statutory or regulatory requirement mandating certification of the record of appeal under the Civil Procedure Rules or the Civil Procedure Act. The only requirement is that the documents listed in Order 41 rule 8B (4) be present on the record before the appeal is set for hearing....
Source-derived case information.
- Citation
- [2005] KEHC 120 (KLR)
- Parties
- Appellant: Abubakar Omar Ridhiwan; Appellant: Fatuma Omar; Appellant: Maalim Mohamed; Respondent: Ali Haji Bini; Respondent: Lali Ahmed; Respondent: Harith Ahmed
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 5 of 2005
- Procedural Posture
- Civil Appeal / Directions Hearing Under Section 79(b) Civil Procedure Act
- Outcome
- Objection to the record of appeal on grounds of lack of certification dismissed; appeal to proceed to hearing.
- Legal Topics
- Appeal Record Requirements, Certification of Documents, Directions Hearing, Jurisdictional Objections
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abubakar Omar Ridhiwan
Appellant
Fatuma Omar
Appellant
Maalim Mohamed
Appellant
Ali Haji Bini
Respondent
Lali Ahmed
Respondent
Harith Ahmed
Respondent
Procedural Posture
Civil Appeal / Directions Hearing Under Section 79(b) Civil Procedure Act
Legal Issues
- 1 Whether the record of appeal must be certified for the appeal to be valid.
- 2 Whether failure to certify the record of appeal affects the merits or validity of the appeal.
Ratio Decidendi
The court held that there is no statutory or regulatory requirement mandating certification of the record of appeal under the Civil Procedure Rules or the Civil Procedure Act. The only requirement is that the documents listed in Order 41 rule 8B (4) be present on the record before the appeal is set for hearing. Certification, while a matter of practice, is not a legal necessity. Therefore, the absence of certification does not render the appeal invalid or affect its merits. The objection to the record of appeal on the ground of lack of certification was dismissed, and the court directed that the appeal proceed to hearing with the appropriate judicial panel as required by law.
Court Disposition
Objection to the record of appeal on grounds of lack of certification dismissed; appeal to proceed to hearing.
Orders
- The appeal shall be heard by one judge assisted by two Kadhis as assessors in terms of Section 65 (C) of the Civil Procedure Act.
- Once a date is taken, Kadhi, Lamu and Kadhi, Malindi will be notified accordingly.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
CIVIL APPEAL 5 OF 2005
1. ABUBAKAR OMAR RIDHIWAN
2. FATUMA OMAR
3. MAALIM MOHAMED…………………………................................................…..APPELLANTS
VERSUS
1. ALI HAJI BINI
2. LALI AHMED
3. HARITH AHMED……………………………….........................................……RESPONDENTS
RULING
When this appeal came before me for directions under Section 79 (B) of the Civil Procedure Act, Mr.Ole Kina for the respondents sought to have the record of appeal struck out for the reason that the same was not certified. Counsel was not, however, able to specify the provision of the law making it mandatory that the record of appeal be certified. I am also not able to identify any.
A practice has, however evolved where the Deputy Registrar issues a certificarte under Section 79 (B) of the Civil Procedure Act, and places the appeal before the judge for directions. This was done in this appeal. When the appeal comes for directions, any objection to the jurisdiction may be raised before directions are given.
The only explicit requirements is that the judge must be satisfied the documents listed below are on the Court record before appeal goes to hearing. They are,
a) the Memorandum of appeal;
b) the pleadings;
c) the notes of the trial magistrate made at the hearing;
d) the transcript of any official shorthand or Palantypist notes made at the hearing;
e) all affidavits, maps and other documents whatsoever put in evidence before the magistrate
f) the judgment, order or decree appealed from, and, where appropriate, the order (if any) giving leave to appeal.
g) ……………………………….
See Order 41 rule 8B (4) C.P.R.
It will be observed that in contrast to Rule 85 of the Court of Appeal Rules, this rule does not require the above documents to be certified although as a matter of practice they are normally certified.
But even if it was a requirement under the rules, to my mind failure to comply with such a requirement cannot affect the merits of the appeal and therefore cannot vitiate the same. I find that the record is in order.
It is directed that this appeal shall be heard by one judge assisted by two Kadhis as assessors in terms of Section 65 ( C ) of the Civil Procedure Act.
Once a date is taken, Kadhi, Lamu and Kadhi, Malindi will be notified accordingly.
Dated and delivered on Malindi this 20th day of September, 2005.
W.OUKO
JUDGE
20. 9.2005
Ouko, J
Mr.Gekanana for appellant
N/a for Mr.Ole Kina for respondent
C.C: Mr.Matu/Linda
Ruling delivered.
W.OUKO
JUDGE