[2006] KECA 155 (KLR)
The Court held that the essential requirement for the record of appeal is the inclusion of a certified copy of the order, as stipulated by Rule 85(1)(h) of the Court of Appeal Rules. The Court clarified that the rules do not mandate that the certified order must have been drawn up in strict compliance with Order 20...
Source-derived case information.
- Citation
- [2006] KECA 155 (KLR)
- Parties
- Appellant: Edward Maina Njanga t/a Maina Njanga & Co. Advocates; Respondent: National Bank of Kenya Ltd
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 111 of 2005
- Procedural Posture
- Civil Appeal / Application to Strike Out Record of Appeal
- Outcome
- application dismissed
- Legal Topics
- Appeal Record Striking Out, Certified Order Requirement, Drawing Up of Orders, Procedural Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edward Maina Njanga t/a Maina Njanga & Co. Advocates
Appellant
National Bank of Kenya Ltd
Respondent
Procedural Posture
Civil Appeal / Application to Strike Out Record of Appeal
Legal Issues
- 1 Whether the appeal should be struck out for alleged non-compliance with Order 20 Rule 7 of the Civil Procedure Rules in drawing up the order.
- 2 Whether the presence of a certified copy of the order in the record of appeal satisfies Rule 85(1)(h) of the Court of Appeal Rules.
Ratio Decidendi
The Court held that the essential requirement for the record of appeal is the inclusion of a certified copy of the order, as stipulated by Rule 85(1)(h) of the Court of Appeal Rules. The Court clarified that the rules do not mandate that the certified order must have been drawn up in strict compliance with Order 20 Rule 7 of the Civil Procedure Rules. Any alleged irregularity in the drawing up of the order is a matter for the superior court, not the appellate court. The drawing up of the order is not an essential step in the appellate process comparable to the timely filing of a notice of appeal or the inclusion of a certified order. Therefore, the application to strike out the appeal on...
Court Disposition
application dismissed
Orders
- The notice of motion dated 31st May 2005 and lodged in Court on 2nd June 2005 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT MOMBASA
Civil Appeal (Appli) 111 of 2005
EDWARD MAINA NJANGA T/A
MAINA NJANGA & CO. ADVOCATES …….………………….. APPELLANT
AND
NATIONAL BANK OF KENYA LTD …………………………. RESPONDENT
(Application to strike out the record of appeal from a ruling of the High Court of Kenya at Mombasa (Maraga J.) dated 4th April 2005
in
H.C.MISC. A. NO.583 OF 2003)
*****************
RULING OF THE COURT
There is really no valid reason put before us for striking out the appeal. The order included in the record is certified and it was drawn, signed and certified by a Deputy Registrar of the superior court.
It is now said the Deputy Registrar in approving the order, did not comply with Order 20 Rule 7 of the Civil Procedure Rules but if that did happen, the proper place to complain is the superior court itself which drew up the order. All that Rule 85(l)(h) requires is that there be in the record a certified copy of the order; it (Rule) does not say that the certified order must have been drawn up in accordance with Order 20 Rule 7. The drawing up of an order in the superior court is really not an essential step in the process of appeal; an essential step in the process of an appeal would be, for example, failure to file the notice of appeal within time or filing an appeal without a certified copy of the order. But if it is being alleged that the order was not properly drawn up then the proper place to raise that complaint is to go to the superior court. We accordingly refuse to strike out the appeal and order that the notice of motion dated 31st May 2005and lodged in Court on 2nd June 2005, be and is hereby dismissed but we make no order as to the costs thereof as the respondent agrees they failed to comply with the process of drawing up an order. Those are our orders.
Dated at Mombasa this 27th day of July, 2006.
R.S.C. OMOLO
……………………….
JUDGE OF APPEAL
S.E.O. BOSIRE
…………………………
JUDGE OF APPEAL
W.S. DEVERELL
…………………………..
JUDGE OF APPEAL
I certify that this is a true copy of the original
DEPUTY REGISTRAR