[2003] KECA 149 (KLR)
The Court found that the notice of appeal was served out of time without leave and that the order appealed from did not tally with the ruling of the superior court. Since the order is a primary document and cannot be amended, these defects rendered the appeal incurably defective. The Court concluded that the appeal...
Source-derived case information.
- Citation
- [2003] KECA 149 (KLR)
- Parties
- Appellant: Bahati Women Company Limited; Respondent: Joseph Mathenge Muturi; Respondent: David Muchai Ng'ang'a; Respondent: Lucy Wanjiru Muratha; Respondent: Peter O. Obwang; Respondent: Lucy Wambui Gachau; Respondent: Emily Nyambura Wachania; Respondent: Veronica Njeri; Respondent: Jacinta Njeri Mwangi
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 53 of 2001
- Procedural Posture
- Civil Appeal / Ruling on Application to Strike Out Appeal
- Outcome
- Appeal struck out as incompetent.
- Legal Topics
- Notice of Appeal, Service Out of Time, Primary Documents, Appeal Incompetence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bahati Women Company Limited
Appellant
Joseph Mathenge Muturi
Respondent
David Muchai Ng'ang'a
Respondent
Lucy Wanjiru Muratha
Respondent
Peter O. Obwang
Respondent
Lucy Wambui Gachau
Respondent
Emily Nyambura Wachania
Respondent
Veronica Njeri
Respondent
Jacinta Njeri Mwangi
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Strike Out Appeal
Legal Issues
- 1 Whether the notice of appeal was served out of time without leave.
- 2 Whether the order appealed from tallied with the ruling of the superior court.
- 3 Whether the appeal was incurably defective due to procedural irregularities.
Ratio Decidendi
The Court found that the notice of appeal was served out of time without leave and that the order appealed from did not tally with the ruling of the superior court. Since the order is a primary document and cannot be amended, these defects rendered the appeal incurably defective. The Court concluded that the appeal was incompetent and should be struck out, with costs awarded to the respondents.
Court Disposition
Appeal struck out as incompetent.
Orders
- The respondents' application dated 24th April, 2001 is allowed with costs.
- The notice of appeal and the appeal are struck out as incompetent.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAKURU
(CORAM: TUNOI, BOSIRE & OWUOR, JJ.A.)
CIVIL APPEAL NO. 53 OF 2001
BETWEEN
BAHATI WOMEN COMPANY LIMITED ....................... APPELLANT
AND
1. JOSEPH MATHENGE MUTURI
2. DAVID MUCHAI NG'ANG'A
3. LUCY WANJIRU MURATHA
4. PETER O. OBWANG
5. LUCY WAMBUI GACHAU
6. EMILY NYAMBURA WACHANIA
7. VERONICA NJERI
8. JACINTA NJERI MWANGI ................................RESPONDENTS
(Appeal from the ruling of the High Court of Kenya at Nakuru
(Rimita, J.) dated the 8th day of November, 2000
in
H.C.C.C. NO. 375 OF 2000)
*********************
RULING OF THE COURT
Mr. Mbeche, counsel for the respondents in this application concedes, quite properly so, that the notice of appeal included in the record of appeal was served out of time without leave, and also that the order appealed from which is part of the record does not tally with the ruling of the superior court appealed against. That being the case and considering that the order is a primary document and cannot be amended,it followsthat this appeal is incurably defective.
In the result, we allow the respondents' application dated 24th April, 2001, with costs, strike out both the notice of appeal and the appeal as incompetent. We award the costs of the appeal to the respondents to be taxed if not agreed upon.
Dated and delivered this 28th day of February, 2003.
P. K. TUNOI
...............
JUDGE OF APPEAL
S. E. O. BOSIRE
...............
JUDGE OF APPEAL
E. OWUOR
...............
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR