[1996] KECA 103 (KLR)
The Court held that the appellant's failure to serve the record of appeal within the required 7 days and the omission of primary documents from the original record, both admitted by the appellant, constituted fatal procedural defects under the Court of Appeal Rules. The attempt to cure the omission by filing a...
Source-derived case information.
- Citation
- [1996] KECA 103 (KLR)
- Parties
- Appellant: Elijah Wambugu Muriithi; Respondent: Moses Mathenge Muriithi; Respondent: Stephen Nderitu Muriithi
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 35 of 1996
- Procedural Posture
- Civil Appeal / Application to Strike Out Appeal Before the Court of Appeal
- Outcome
- Appeal struck out as incompetent.
- Judges
- RO Kwach, AM Akiwumi, AB Shah
- Legal Topics
- Appeal Striking Out, Record of Appeal Requirements, Service of Process, Court of Appeal Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Elijah Wambugu Muriithi
Appellant
Moses Mathenge Muriithi
Respondent
Stephen Nderitu Muriithi
Respondent
Procedural Posture
Civil Appeal / Application to Strike Out Appeal Before the Court of Appeal
Legal Issues
- 1 Whether failure to serve the record of appeal within 7 days after lodging as required by rule 87(1) of the Court of Appeal Rules is fatal to the appeal.
- 2 Whether omission of primary documents from the record of appeal, in breach of rule 85(1)(f), can be cured by filing a supplementary record of appeal.
Ratio Decidendi
The Court held that the appellant's failure to serve the record of appeal within the required 7 days and the omission of primary documents from the original record, both admitted by the appellant, constituted fatal procedural defects under the Court of Appeal Rules. The attempt to cure the omission by filing a supplementary record was ineffective, as primary documents must be included in the original record. The cumulative effect of these breaches rendered the appeal incompetent, warranting its striking out. The Court relied on established precedent that such defects are not curable by subsequent filings and that strict compliance with the rules is mandatory for the validity of an appeal.
Court Disposition
Appeal struck out as incompetent.
Orders
- The appeal is struck out as incompetent.
- The respondents are awarded the costs of both the appeal and the motion.
Full Case Text
Judgment text and source record
30 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: KWACH, AKIWUMI & SHAH, JJ.A.)
CIVIL APPEAL NO. 35 OF 1996
BETWEEN
ELIJAH WAMBUGU MURIITHI……………..…………..…….APPELLANT
AND
MOSES MATHENGE MURIITHI)
STEPHEN NDERITU MURIITHI)………………..………..….RESPONDENT
(Appeal from the Judgment and decree of the High Court of Kenya at Nairobi (Justice Githinji) dated 11th May, 1995
IN
H. C. C. C. NO 2755 OF 1994)
************************
RULING OF THE COURT
There is a notice of motion before us taken out by the respondents under rules 80 and 85(1)(f) of the Court of Appeal Rules to strike out the appeal on the ground that the record of appeal was not served on the respondents within 7 days after lodging as required by rule 87(1) of the Rules of this Court. This default is admitted by the appellant in his replying affidavit. The other ground on which counsel for the respondents relies is that the record of appeal lodged did not contain vital documents produced at the trial in breach of rule 85(1)(f) of the Rules of this Court. This default is also admitted by the appellant in his replying affidavit although he says that he has put the matter right by filing a supplementary record of appeal containing those documents.
There is no doubt that the documents left out are primary documents which cannot be introduced by way of a supplementary record of appeal. There are numerous decisions of this Court to that effect.
In the result the application succeeds and the appeal is hereby struck out as it is clearly incompetent. The respondents will have the costs of both the appeal and the motion.
Dated and delivered at Nairobi this 23rd day of September, 1996.
R. O. KWACH
………………………
JUDGE OF APPEAL
A. M. AKIWUMI
………………………..
JUDGE OF APPEAL
A. B. SHAH
……………………..
JUDGE OF APPEAL
I certify that this is a
true copy of the original.
DEPUTY REGISTRAR