[2009] KEHC 1357 (KLR)
The appeal was struck out because the appellant failed to extract and include the order or decree appealed from in the record of appeal, as mandatorily required by Order XLI Rule 8B (4) (f) of the Civil Procedure Rules. This omission is a fatal procedural defect that goes to the jurisdiction of the appellate court...
Source-derived case information.
- Citation
- [2009] KEHC 1357 (KLR)
- Parties
- Appellant: Ernest Njuguna Muthee; Respondent: The Attorney General (on behalf of The Children’s Officer - Nyeri)
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 8 of 2005
- Procedural Posture
- Civil Appeal / Judgment on Preliminary Objection Regarding Record of Appeal
- Outcome
- Appeal struck out as fatally incompetent.
- Judges
- MSA Makhandia
- Legal Topics
- Appeal Record Requirements, Mandatory Documents, Jurisdictional Objection
- 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
Ernest Njuguna Muthee
Appellant
The Attorney General (on behalf of The Children’s Officer - Nyeri)
Respondent
Procedural Posture
Civil Appeal / Judgment on Preliminary Objection Regarding Record of Appeal
Legal Issues
- 1 Whether failure to extract and include the order appealed from renders the appeal fatally incompetent.
- 2 Whether the court can strike out an appeal on a jurisdictional issue not raised by the parties.
Ratio Decidendi
The appeal was struck out because the appellant failed to extract and include the order or decree appealed from in the record of appeal, as mandatorily required by Order XLI Rule 8B (4) (f) of the Civil Procedure Rules. This omission is a fatal procedural defect that goes to the jurisdiction of the appellate court to entertain the appeal. The court held that compliance with this rule is not discretionary and cannot be dispensed with, even if the parties did not raise the issue. The absence of the order deprived the court of the necessary jurisdictional foundation to hear the appeal, rendering it incompetent and liable to be struck out.
Court Disposition
Appeal struck out as fatally incompetent.
Orders
- The appeal is hereby struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
16 paragraphs
ERNEST NJUGUNA MUTHEE...................................APPELLANT
Versus
THE ATTORNEY GENERAL
On behalf of The Children’s Officer - Nyeri..........RESPONDENT
(Appeal from original Ruling and Order of the Senior Principal Magistrate Courts at Nyeri
in P & D Case No.313 of 2004 dated 10th February, 2005 by R.A.A.OTIENO - SRM)
J U D G M E N T
This appeal relates to a ruling and order delivered by the Senior Resident Magistrate Nyeri in Nyeri P & D case No.313 of 2005 on or about 10th February, 2005. In filing the record of appeal the appellant failed to extract and include that ruling in the record of appeal. Order XLI Rule 8B (4) (f) provides as follows:-
“8B (4) Before allowing the appeal to go for hearing the judge shall be satisfied that the following documents are on the court record, and that such of them as are not in the possession of either party have been served on that party, that is to say-
(f)the judgment, order or decree appealed from, and, where appropriate, the order (if any) giving leave to appeal;”
Further rule 8B (4) (g) (ii) provides as follows:
“(ii) The judge may dispense with the production of any document or part of a document which is not relevant other than those specified in paragraphs (a), (b) and (f).”
This rule makes it mandatory for the appellant to extract the order or the decree from which the appeal relates to. The appellant having failed to extract and attach that order to the record of appeal makes this appeal fatally incompetent. For that reason this appeal is hereby struck out with no order as to costs. I appreciate that this is an issue which was not canvassed by the appellant in his submissions. However since it is a matter of law and goes to jurisdiction I had to crapple with it, the absence of any input from the appellant and or respondent notwithstanding.
Dated and delivered at Nyeri this 29th day of October, 2009.
M.S.A. MAKHANDIA
JUDGE