[2017] KEHC 3426 (KLR)
The court found that the certified copy of the decree was in fact present in the record of appeal, albeit at a different page than indicated. The omission was therefore an error apparent on the face of the record, justifying the setting aside of the order striking out the appeal. However, the court noted that there...
Source-derived case information.
- Citation
- [2017] KEHC 3426 (KLR)
- Parties
- Appellant: Equity Bank Limited; Appellant: Joseph Muriuki T/A Joward 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 / Ruling on Application to Set Aside Order Striking Out Appeal
- Outcome
- application allowed with conditions
- Judges
- J Ngaah
- Legal Topics
- Appeal Striking Out, Record of Appeal Requirements, Error on Face of Record
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Equity Bank Limited
Appellant
Joseph Muriuki T/A Joward Enterprises
Appellant
Jibs Enterprises
Appellant
Perpetua Muthoni Nduma
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Set Aside Order Striking Out Appeal
Legal Issues
- 1 Whether the appeal was properly struck out for omission of a certified copy of the decree from the record of appeal.
- 2 Whether the court made an error apparent on the face of the record in striking out the appeal.
- 3 Whether the applicants should be allowed to reinstate the appeal subject to payment of further court fees.
Ratio Decidendi
The court found that the certified copy of the decree was in fact present in the record of appeal, albeit at a different page than indicated. The omission was therefore an error apparent on the face of the record, justifying the setting aside of the order striking out the appeal. However, the court noted that there was no evidence of payment of further court fees for the liquidated sum sustained by the lower court, but did not penalize the applicants for this in the absence of evidence that the executive officer had assessed the correct amount. The application to reinstate the appeal was allowed on condition that the applicants pay the further court fees within fourteen days, failing...
Court Disposition
application allowed with conditions
Orders
- The applicants' motion dated 19th August, 2016 is allowed on condition that further court fees are paid within fourteen days of the ruling.
- In default of payment, the motion shall stand dismissed.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
CIVIL APPEAL NO. 75 OF 2011
EQUITY BANK LIMITED................................................1ST APPELLANT/APPLICANT
JOSEPH MURIUKI T/A JOWARD ENTERPRISES...2ND APPELLANT/APPLICANT
JIBS ENTERPRISES....................................................3RD APPLICANT/APPELLANT
VERSUS
PERPETUA MUTHONI NDUMA..............................................................RESPONDENT
RULING
On 29th July, 2016, the appellants’ appeal was struck out primarily on the ground that a certified copy of the decree was omitted from the record of appeal. The applicants, by their motion dated 19th August, 2016, say that this was an error apparent on the face of the record for the copy of the decree was always on the record only that it was at a different page from that which the appellant had earlier indicated to the court.
If the applicants’ deposition is true, then I agree with their counsel that indeed the court made an error to strike out their appeal for lack of the decree appealed against. Curiously, however, counsel for the respondent, while opposing the application, submitted that the decree was also not in the copy of the record of appeal that he was served with.
According to the applicants, the decree was at page 54 of the record and not page 47 as earlier indicated. Indeed, when checked the record I found a copy at page 54 thereof.
I am prepared to give the appellants the benefit of doubt and accept that it may be that the certified copy of the decree was always in the record of appeal filed in court only that I was not keen enough to see it before I struck out the appeal; and perhaps, it was also inadvertently omitted from the record that was served upon the respondent’s counsel.
But even if I have to make all these concessions, there is one more thing which casts doubt on the validity of the decree itself; it appears that it was not paid for because there is no evidence that there was payment of further court fees considering that part of the claim which the lower court sustained was a liquidated sum. Again, I may not take it on the applicant for failure to pay the further court fees because I do not have any evidence that the executive officer assessed properly or at all the correct amount payable as further court fees.
In the circumstances, I will allow the applicants’ motion dated 19th August, 2016 but on condition that they pay further court fees within fourteen days of the date hereof and in default, the motion shall stand dismissed. The costs shall be in the cause.
Dated, signed and delivered in open court this 22nd September, 2017.
Ngaah Jairus
JUDGE