[2006] KECA 195 (KLR)
The Court found that the record of appeal was fundamentally defective because the decree included was not signed by the Deputy Registrar and did not correspond to the judgment appealed from. The certification of such a decree by the Deputy Registrar was deemed inconsequential. The Court held that this defect alone...
Source-derived case information.
- Citation
- [2006] KECA 195 (KLR)
- Parties
- Applicant: Gaudensia Atieno Amimo; Appellant: Akamba Public Road Services Limited; Respondent: Shadrack Kaigai; Respondent: Daniel Kaigai
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal (Application) 26 of 2006
- Procedural Posture
- Civil Appeal / Application to Strike Out Record of Appeal
- Outcome
- Application to strike out record of appeal granted.
- Judges
- J Wakiaga
- Legal Topics
- Striking Out Appeal, Record of Appeal Requirements, Decree Signature, Illegible Documents
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gaudensia Atieno Amimo
Applicant
Akamba Public Road Services Limited
Appellant
Shadrack Kaigai
Respondent
Daniel Kaigai
Respondent
Procedural Posture
Civil Appeal / Application to Strike Out Record of Appeal
Legal Issues
- 1 Whether the record of appeal should be struck out for containing a decree that is not signed by the Deputy Registrar and relates to a different judgment date.
- 2 Whether the inclusion of illegible copies of primary documents in the record of appeal is a valid ground for striking out the appeal.
Ratio Decidendi
The Court found that the record of appeal was fundamentally defective because the decree included was not signed by the Deputy Registrar and did not correspond to the judgment appealed from. The certification of such a decree by the Deputy Registrar was deemed inconsequential. The Court held that this defect alone was sufficient to strike out the record of appeal, without needing to address the issue of illegible documents. The application to strike out the record of appeal was therefore granted, and the record of appeal was struck out with costs to the first and second respondents in the main appeal.
Court Disposition
Application to strike out record of appeal granted.
Orders
- The record of appeal filed on 8th February, 2006 is struck out.
- Costs awarded to the first and second respondents in the main appeal.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL OF KENYA AT KISUMU
CIVIL APPEAL (APPLI) 26 OF 2006
GAUDENSIA ATIENO AMIMO….......…...APPLICANT/1ST RESPONDENT
AND
AKAMBA PUBLIC ROAD SERVICES LIMITED ..........................1ST RESPONDENT/APPELLANT
SHADRACK KAIGAI ...………………………....2ND RESPONDENT
DANIEL KAIGAI ..................................................3RD RESPONDENT
(An application to strike out record of appeal from the judgment of the High Court of Kenya at Kisumu (Mr. Justice Mohammed Warsame) dated 24th November, 2005
in
KISUMU H.C.C. NO. 173 OF 2001)
******************
RULING OF THE COURT
What is before us is an application made by the 1st respondent in the main appeal under rule 80 of the Rules of this Court for striking out the record of appeal for two reasons: firstly, that the purported decree contained in the record of appeal is not signed by the Deputy Registrar and that it relates to a judgment delivered on 8th February, 2005 whilst the judgment the subject matter of the appeal was delivered on 24th November, 2005; secondly, that the record of appeal contains various illegible copies of primary documents. We have examined the original record of the superior court and it is conceded by Mr. Menezes for the appellant/respondent, that the original decree is not signed and is in fact blank and unsigned. The Deputy Registrar’s Certification of it in that form is therefore of no consequence. On this ground alone, we think Mr. Otieno’s submission is valid and we grant the application as sought.
Accordingly, we order that the record of appeal filed in this Court on 8th February, 2006 be and is hereby struck out with costs to the first and second respondents in the main appeal.
Dated and delivered at Kisumu this 23rd day of June, 2006.
P. K. TUNOI
………………………
JUDGE OF APPEAL
E. O. O’KUBASU
……………………….
JUDGE OF APPEAL
P. N. WAKI
…………………………
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR