[2008] KEHC 1128 (KLR)
The court found that despite multiple opportunities and explicit directions to file a proper record of appeal, the appellant continued to file defective records. The latest record filed on 28th September 2007 was also found to be defective. The court held that non-compliance with the procedural requirements for...
Source-derived case information.
- Citation
- [2008] KEHC 1128 (KLR)
- Parties
- Appellant: Angela Nyawira Njagi; Respondent: Sarah Njoki Kihara
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 453 of 2000
- Procedural Posture
- Civil Appeal / Ruling on Motion to Strike Out Record of Appeal
- Outcome
- Appellant's record of appeal struck out as incompetent with costs to the respondent.
- Judges
- JL Osiemo
- Legal Topics
- Striking Out Record of Appeal, Defective Record of Appeal, Civil Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Angela Nyawira Njagi
Appellant
Sarah Njoki Kihara
Respondent
Procedural Posture
Civil Appeal / Ruling on Motion to Strike Out Record of Appeal
Legal Issues
- 1 Whether the appellant's record of appeal should be struck out for being defective.
- 2 Whether the appellant complied with court orders to file a proper record of appeal.
Ratio Decidendi
The court found that despite multiple opportunities and explicit directions to file a proper record of appeal, the appellant continued to file defective records. The latest record filed on 28th September 2007 was also found to be defective. The court held that non-compliance with the procedural requirements for records of appeal, particularly the failure to include the order appealed from, rendered the appeal incompetent. Consequently, the court struck out the appellant's record of appeal with costs.
Court Disposition
Appellant's record of appeal struck out as incompetent with costs to the respondent.
Orders
- The appellant's record of appeal filed on 28th September 2007 is struck out for being defective and incompetent.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS) Civil Appeal 453 of 2000
ANGELA NYAWIRA NJAGI…………………...…………………APPELLANT
VERSUS
SARAH NJOKI KIHARA………………………………………..RESPONDENT
R U L I N G
By this Notice of Motion expressed to be brought under Sections 3A and 79B of the Civil Procedure Act and Order XLI Rule 8B (4) of the Civil Procedure Rules the Respondent seeks orders that the appellant’s record of appeal be struck out. The application is based on the ground that the order appealed from is not included in the record of appeal and that so far the appellant has filed three different records of appeal. The first one was filed on 11th February 2003. The appellant filed yet another supplementary record of appeal on 21st May 2007 and went ahead to fix the appeal down for hearing before directions were taken.
Mr. Kamau counsel for the respondent submitted that on 22nd May 2007 the court noted that the record of appeal was improper and ordered the appellant to file a proper record of Appeal and ordered that the matter be mentioned on 29th May 2007 to ascertain compliance and yet again the allegedly proper record of appeal so filed was defective and urged the court to strike it out.
Mr. Kimana counsel for the appellant in reply admitted that what counsel said was true but submitted that he only came on record on 24th May 2007 and that he has now filed a proper record on 28th September 2007. But having perused the record of appeal filed by the appellant on 28th September 2007. I find it also defective and the same is struck out with costs for being incompetent.
It is so ordered.
Dated and delivered at Nairobi this 23rd day of May 2008.
J. L. A. OSIEMO
JUDGE