[2009] KEHC 3858 (KLR)
The court held that the requirement under Order XLI Rule 8B(4)(f) of the Civil Procedure Rules to extract and include the order or decree appealed from is mandatory. The appellant's failure to comply with this requirement rendered the appeal incompetent. The court further noted that the discretion to dispense with...
Source-derived case information.
- Citation
- [2009] KEHC 3858 (KLR)
- Parties
- Appellant: Benjamin G. Ndegwa; Respondent: Dr. Chris Murungaru; Respondent: Dr. Mrs. Murungaru
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 4 of 2006
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal struck out
- Judges
- MM Kasango, MSA Makhandia
- Legal Topics
- Appeal Record Requirements, Mandatory Documents, Striking Out Appeals
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benjamin G. Ndegwa
Appellant
Dr. Chris Murungaru
Respondent
Dr. Mrs. Murungaru
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether failure to extract and include the order or decree appealed from renders the appeal incompetent.
- 2 Whether the court can dispense with the requirement to include the order or decree appealed from in the record of appeal.
Ratio Decidendi
The court held that the requirement under Order XLI Rule 8B(4)(f) of the Civil Procedure Rules to extract and include the order or decree appealed from is mandatory. The appellant's failure to comply with this requirement rendered the appeal incompetent. The court further noted that the discretion to dispense with documents under Rule 8B(4)(g)(ii) does not extend to the order or decree appealed from. Consequently, the appeal was struck out for non-compliance with the procedural requirements.
Court Disposition
appeal struck out
Orders
- The appeal is struck out for incompetence due to failure to extract and include the order or decree appealed from.
- Costs are awarded to the respondents.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Civil Appeal 4 of 2006
BENJAMIN G. NDEGWA ……….……………….. APPELLANT
Versus
DR. CHRIS MURUNGARU ……...…..…… 1ST RESPONDENT
DR. MRS. MURUNGARU ….....……..…… 2ND RESPONDENT
(Being an appeal against the ruling of E. J. OSORO – Senior Resident Magistrate in the Chief Magistrate’s Civil Suit No. 248 of 2005 at NYERI)
JUDGMENT
The appellant appeal relates to a ruling delivered by the Resident Magistrate Nyeri in Nyeri CMCC no. 248 of 2005 on 12th January 2006. In filing the record of appeal the appellant failed to extract and include that ruling in the record of appeal. Order XLI Rule 8B(4)(f) provides as follows:-
“8B(4) Before allowing the appeal to go for hearing the
judge shall be satisfied that the following documents are on the court record, and that such of them as are not in the possession of either party have been served on that party, that is to say- .…
(f)the judgment, order or decree appealed from,
and, where appropriate, the order (if any) giving leave to appeal;”
Further rule 8B (4) (g) (ii) provides as follows;
(ii) The judge may dispense with the production of
any document or part of a document which is not relevant other than those specified in paragraphs (a), (b) and (f).”
This rule makes it mandatory for the appellant to extract the order or the decree from which the appeal relates to. The appellant having failed to extract and attach that order to the record of appeal makes this appeal to be incompetent. For that reason this appeal is hereby struck out with costs being awarded to the appellant.
MARY KASANGO
JUDGE
Dated and delivered this 14th day of May 2009
M. S. A. MAKHANDIA
JUDGE