[2015] KEHC 2404 (KLR)
The court found that the absence of the decree being appealed against in the record of appeal is a fatal omission, as it is a mandatory requirement for the proper institution of an appeal. Without the decree, there is no valid appeal before the court for determination. However, the court exercised discretion to...
Source-derived case information.
- Citation
- [2015] KEHC 2404 (KLR)
- Parties
- Appellant: Equity Bank Limited; Appellant: Joseph Muriuki T/A Ajoward Enterprises; Appellant: Jibs Enterprises; Respondent: Perpetua Muthoni Nduma
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 75 of 2011
- Procedural Posture
- Civil Appeal / Directions Before Hearing; Deficiency in Record of Appeal Identified
- Outcome
- Appellants directed to file supplementary record including decree within thirty days; failure will result in appeal being struck out.
- Judges
- J Ngaah
- Legal Topics
- Appeal Record Requirements, Supplementary Record, Decree Extraction
- 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
Equity Bank Limited
Appellant
Joseph Muriuki T/A Ajoward Enterprises
Appellant
Jibs Enterprises
Appellant
Perpetua Muthoni Nduma
Respondent
Procedural Posture
Civil Appeal / Directions Before Hearing; Deficiency in Record of Appeal Identified
Legal Issues
- 1 Whether the appeal is properly before the court in the absence of the decree being appealed against.
- 2 Whether the appellants should be allowed to file a supplementary record to include the missing decree.
Ratio Decidendi
The court found that the absence of the decree being appealed against in the record of appeal is a fatal omission, as it is a mandatory requirement for the proper institution of an appeal. Without the decree, there is no valid appeal before the court for determination. However, the court exercised discretion to allow the appellants to rectify the omission by filing a supplementary record of appeal to include a certified copy of the decree within thirty days, failing which the appeal would stand struck out. The previous directions certifying the record as complete were accordingly varied.
Court Disposition
Appellants directed to file supplementary record including decree within thirty days; failure will result in appeal being struck out.
Orders
- Appellants to file and serve a supplementary record of appeal including a certified copy of the decree appealed against within thirty days of the order.
- Failure to comply will result in the appeal standing struck out.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
CIVIL APPEAL NO. 75 OF 2011
EQUITY BANK LIMITED………………………...........................................….1ST APPELLANT
JOSEPH MURIUKI T/A AJOWARD ENTERPRISES………………….…....2ND APPELLANT
JIBS ENTERPRISES……………….……….....................................….….….3RD APPELLANT
VERSUS
PERPETUA MUTHONI NDUMA………….....................................….…….........RESPONDENT
FURTHER DIRECTIONS
On 9th March, 2015, counsel for the respective parties appeared before me for directions on the hearing of the appeal; they were both in agreement that the record of appeal is inorder and directions should be given in that regard certifying the record as complete.
Based upon counsel’s presentations, I certified the record as complete and also directed that the appeal shall be disposed of by way of written submissions before a single judge. Parties filed and exchanged their respective submissions as directed.
When I retreated to write the judgment during the High Court August vacation, I noted that the decree being appealed against had neither been included in the record of appeal nor had it been extracted.
Without the decree there is no appeal before the court for determination. I therefore direct the appellants to file a supplementary record of appeal to include a certified copy of the decree appealed against. The supplementary record shall be filed and served within thirty days of the date of this order failure of which the appeal shall stand struck out. My orders of 9th March. 2015 are varied accordingly.
Dated, signed and delivered in open court this 2nd day of October, 2015
Ngaah Jairus
JUDGE