[2006] KECA 321 (KLR)
The Court found that both parties agreed the record of appeal was incurably defective due to errors in the notice of appeal and the decree. The Court, therefore, allowed the application to strike out the appeal, holding that procedural defects of this nature are fatal and warrant the striking out of the appeal....
Source-derived case information.
- Citation
- [2006] KECA 321 (KLR)
- Parties
- Applicant: Egerton University; Respondent: Githinji Karoki
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 47 of 2004
- Procedural Posture
- Civil Appeal / Application to Strike Out Appeal
- Outcome
- Appeal struck out due to incurably defective record of appeal. Costs awarded to the applicant.
- Legal Topics
- Striking Out Appeal, Defective Record of Appeal, Notice of Appeal, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Egerton University
Applicant
Githinji Karoki
Respondent
Procedural Posture
Civil Appeal / Application to Strike Out Appeal
Legal Issues
- 1 Whether the notice of appeal and decree included in the record of appeal are incurably defective.
- 2 Whether Civil Appeal No. 47 of 2004 should be struck out due to procedural defects.
Ratio Decidendi
The Court found that both parties agreed the record of appeal was incurably defective due to errors in the notice of appeal and the decree. The Court, therefore, allowed the application to strike out the appeal, holding that procedural defects of this nature are fatal and warrant the striking out of the appeal. Costs were awarded to the applicant for both the struck out appeal and the notice of motion.
Court Disposition
Appeal struck out due to incurably defective record of appeal. Costs awarded to the applicant.
Orders
- Civil Appeal No. 47 of 2004 is struck out.
- Applicant is awarded the costs of the struck out appeal and the notice of motion.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL OF KENYA PEAL AT NAKURU
Civil Appeal (Appli) 47 of 2004
BETWEEN
EGERTON UNIVERSITY………………………APPLICANT/RESPONDENT
GITHINJI KAROKI………………….…………RESPONDENT/APPELLANT
AND
(An application to strike out Civil Appeal No. 47 of 2004 in an appeal from the judgment and decree of the High Court of Kenya at Nakuru (Lady Justice Angawa) dated 27th November, 2001
in
HCCC NO 117 OF 1999)
****************
RULING OF THE COURT
The application of Egerton University, through its learned counsel Mr Otieno Olola is that Civil Appeal No. 47 of 2004 be struck out because the notice of appeal and the decree included in the record of appeal are incurably defective. Mr Karanja, learned counsel for the respondent Githinji Karoki concedes that the record of appeal is incurably defective and that we strike it out. We agree and allow the applicant’s notice of motion dated and lodged in Court on 16th March, 2004 and order that Civil Appeal No. 47 of 2004 be and is hereby struck out. We award to the applicant the costs of the struck out appeal and the costs of the notice of motion.
Dated and delivered at Nakuru this 3rd day of March, 2006.
R.S.C. OMOLO
………………….
JUDGE OF APPEAL
P.K. TUNOI
………………….
JUDGE OF APPEAL
W.S. DEVERELL
……………………
JUDGE OF APPEAL
I certify that this is a
true copy of the original
DEPUTY REGISTRAR