[1997] KECA 3 (KLR)
The appeal was struck out as incompetent because the appellant failed to serve the request for certified copies of proceedings on the respondent, thereby forfeiting any automatic extension of time for filing the appeal. Additionally, the record of appeal was incomplete as it did not include the exhibits produced in...
Source-derived case information.
- Citation
- [1997] KECA 3 (KLR)
- Parties
- Appellant: Achelis Kenya Limited; Respondent: Francis Nyakaba Makebo
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 32 of 1996
- Procedural Posture
- Civil Appeal / Appeal Against Judgment and Decree of the High Court
- Outcome
- appeal struck out as incompetent
- Judges
- GS Pall
- Legal Topics
- Appeal Filing Requirements, Record of Appeal, Extension of Time, Procedural Incompetence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Achelis Kenya Limited
Appellant
Francis Nyakaba Makebo
Respondent
Procedural Posture
Civil Appeal / Appeal Against Judgment and Decree of the High Court
Legal Issues
- 1 Whether the appeal was filed within the prescribed time under the rules of court.
- 2 Whether the record of appeal was complete in accordance with the mandatory requirements of the rules.
- 3 Whether failure to serve the request for proceedings on the respondent invalidated the appeal.
Ratio Decidendi
The appeal was struck out as incompetent because the appellant failed to serve the request for certified copies of proceedings on the respondent, thereby forfeiting any automatic extension of time for filing the appeal. Additionally, the record of appeal was incomplete as it did not include the exhibits produced in the superior court, which are mandatory primary documents under the rules. The court held that these procedural defects were fatal and could not be cured by filing a supplementary record. As a result, the appeal could not be entertained on its merits and was struck out with no order as to costs.
Court Disposition
appeal struck out as incompetent
Orders
- The appeal is struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
28 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: LAKHA, PALL & BOSIRE, JJ.A)
CIVIL APPEAL NO. 32 OF 1996
BETWEEN
ACHELIS KENYA LIMITED………………….………….APPELLANT
AND
FRANCIS NYAKABA MAKEBO……….……………...RESPONDENT
(An appeal from the Judgment and decree of the High Court of Kenya at Eldoret (Hon. Nambuye) dated 30th November,1995
IN
H. C. C. NO. R62 OF 1992)
***********************
ORDER OF THE COURT
This appeal is against judgment and decree dated 30th November, 1995. However, the certified decree which is part of this record is dated 9th February, 1996. The request for certified copies of the proceedings was not copied to the respondent in breach of rule 81. So there is no automatic extension of time for filing the appeal.
Moreover, none of the exhibits produced in the superior court forms part of the record and they are primarily documents according to rule 85(1)(f). They cannot be brought on record by way of a supplementary record.
For all these reasons, the appeal is incompetent. It is hereby struck out with no order as to costs.
Dated and delivered at Nairobi this 22nd day of February, 1997.
A. A. LAKHA
………………………
JUDGE OF APPEAL
G. S. PALL
…………………….
JUDGE OF APPEAL
S. E. BOSIRE
………………………
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR