[1998] KECA 273 (KLR)
The Court held that since the appeal was against a ruling and not a decree, the requirement to include a certified copy of the decree in the record of appeal did not apply. The underlying suit was still pending in the High Court, and no decree had been issued. Therefore, the application to strike out the appeal for...
Source-derived case information.
- Citation
- [1998] KECA 273 (KLR)
- Parties
- Appellant: Euro Bank Limited; Respondent: Dr Julius Gikonyo Kiano
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 125 of 1998
- Procedural Posture
- Civil Appeal / Application to Strike Out Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Appeal Procedure, Requirement of Decree, Striking Out Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Euro Bank Limited
Appellant
Dr Julius Gikonyo Kiano
Respondent
Procedural Posture
Civil Appeal / Application to Strike Out Appeal
Legal Issues
- 1 Whether an appeal against a ruling requires a certified copy of the decree to be included in the record of appeal.
- 2 Whether the absence of a certified copy of the decree is fatal to an appeal against a ruling.
Ratio Decidendi
The Court held that since the appeal was against a ruling and not a decree, the requirement to include a certified copy of the decree in the record of appeal did not apply. The underlying suit was still pending in the High Court, and no decree had been issued. Therefore, the application to strike out the appeal for want of a certified copy of the decree was without merit and was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application to strike out the appeal is dismissed with costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: GICHERU, PALL & OWUOR JJ.A.)
CIVIL APPEAL NO. 125 OF 1998
BETWEEN
EURO BANK LIMITED.......................................APPELLANT
AND
DR JULIUS GIKONYO KIANO.................................RESPONDENT
(Appeal from a ruling and order of the High Court of Kenya at Nairobi (Hon. Mr. Justice J.M. Khamoni) dated 29th April, 1998 in H.C.C.C. NO.501 OF 1998)
*****************
RULING OF THE COURT
The respondent has applied by this notice of motion that this appeal be struck out as it does not carry a certified copy of the decree. But this appeal is not against any decree. It is against the ruling of the superior court dated 29th April, 1998. In fact the suit is still pending for trial in the superior court. There is no merit in this application. It is hereby dismissed with costs.
Made this 21st day of October, 1998.
J.E. GICHERU ..................
JUDGE OF APPEAL
G.S. PALL ................. JUDGE OF APPEAL
E. OWUOR .................
JUDGE OF APPEAL
I certify that this is a true
copy of the original.
DEPUTY REGISTRAR