[1996] KECA 144 (KLR)
The Court of Appeal held that the absence of a certified copy of the decree in the record of appeal is a fatal defect that renders the appeal incurably defective and incompetent. The requirement to include a certified copy of the decree is mandatory under the Civil Procedure Rules. As the appellants failed to comply...
Source-derived case information.
- Citation
- [1996] KECA 144 (KLR)
- Parties
- Appellant: Beatrice Wambui on behalf of the Estate of Crispus Mbanu Matama; Appellant: John Muigai Kago; Appellant: Geofrey Kihiu Kago; Respondent: Phares Njoroge
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 56 of 1988
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection
- Outcome
- appeal struck out as incompetent
- Legal Topics
- Appeal Procedure, Record of Appeal, Decree Requirement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Beatrice Wambui on behalf of the Estate of Crispus Mbanu Matama
Appellant
John Muigai Kago
Appellant
Geofrey Kihiu Kago
Appellant
Phares Njoroge
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the absence of a certified copy of the decree renders the appeal incompetent.
Ratio Decidendi
The Court of Appeal held that the absence of a certified copy of the decree in the record of appeal is a fatal defect that renders the appeal incurably defective and incompetent. The requirement to include a certified copy of the decree is mandatory under the Civil Procedure Rules. As the appellants failed to comply with this procedural requirement, the court had no option but to strike out the appeal. The court exercised its discretion not to award costs.
Court Disposition
appeal struck out as incompetent
Orders
- The appeal is struck out for want of a certified copy of the decree.
- No order as to costs.
Full Case Text
Judgment text and source record
18 paragraphs
IN THE COURT OF APPEAL AT NAIROBI (CORAM: GICHERU, AKIWUMI & LAKHA JJ.A.) CIVIL APPEAL NO. 56 OF 1988
BETWEEN
1. BEATRICE WAMBUI on behalf of the ESTATE OF CRISPUS MBANU MATAMA
2. JOHN MUIGAI KAGO
3. GEOFREY KIHIU KAGO ...................................................................................APPELLANTS
AND
PHARES NJOROGE ......................................................................................RESPONDENTS
(Appeal from the Judgment of the High Court of Kenya (Honourable Mr. Richard Kwach, Commissioner of Assize) dated 17th March, 1988
in
H.C.C.C. NO. 728 OF 1984) ************
RULING OF THE COURT
The record of appeal in this matter lacks a certified copy of the decree which makes the appeal incurably defective and incompetent. For these reasons we will strike out the appeal with no order as to costs.
Dated and delivered at Nairobi this 1st day of October, 1996.
J. E. GICHERU .............................. JUDGE OF APPEAL
A. M. AKIWUMI .............................. JUDGE OF APPEAL
A. A. LAKHA ............................ JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR.