[1999] KECA 40 (KLR)
The Court of Appeal found that the notice of appeal filed by the appellant was defective. As a result, the appeal was incompetent and could not be entertained by the court. The defect in the notice of appeal was fatal to the proceedings, and the only proper course was to strike out the appeal. The court exercised...
Source-derived case information.
- Citation
- [1999] KECA 40 (KLR)
- Parties
- Appellant: Archidiocese of Kisumu; Respondent: Pheobe Atieno Nyagudi
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 185 of 1997
- Procedural Posture
- Civil Appeal / Order on Preliminary Objection
- Outcome
- Appeal struck out as incompetent due to defective notice of appeal.
- Legal Topics
- Notice of Appeal Defects, Competency of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Archidiocese of Kisumu
Appellant
Pheobe Atieno Nyagudi
Respondent
Procedural Posture
Civil Appeal / Order on Preliminary Objection
Legal Issues
- 1 Whether the notice of appeal filed by the appellant was defective.
- 2 Whether the defect rendered the appeal incompetent.
Ratio Decidendi
The Court of Appeal found that the notice of appeal filed by the appellant was defective. As a result, the appeal was incompetent and could not be entertained by the court. The defect in the notice of appeal was fatal to the proceedings, and the only proper course was to strike out the appeal. The court exercised its discretion not to award costs and lifted the stay of execution previously granted by the superior court.
Court Disposition
Appeal struck out as incompetent due to defective notice of appeal.
Orders
- The appeal is struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL
AT KISUMU
(CORAM: KWACH, LAKHA & OWUOR, JJ.A.)
CIVIL APPEAL NO. 185 OF 1997
BETWEEN ARCHIDIOCESE OF KISUMU ..................................APPELLANT AND PHEOBE ATIENO NYAGUDI ..................................RESPONDENT
(Appeal from the Judgment of the High Court of Kenya at Kisumu before the (Wambilyangah J)dated 16th April, 1996in
H.C.C.C. NO. 287 OF 1991)
****************** ORDER OF THE COURT
As the Notice of Appeal is defective, this appeal is incompetent. Consequently it is hereby struck out with no order as to costs. Stay of execution granted by the superior court lifted.
Made at Kisumu this 16th day of March, 1999. R. O. KWACH----------------------JUDGE OF APPEALA. A. LAKHA---------------------JUDGE OF APPEALE. OWUOR---------------------JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR