[2006] KECA 150 (KLR)
The application to strike out the notice of appeal was dismissed because the grounds advanced did not fall within the scope of rule 80 of the Court of Appeal Rules. The court found that the absence of non-primary documents from the record of appeal is not fatal, as such documents may be included by way of a...
Source-derived case information.
- Citation
- [2006] KECA 150 (KLR)
- Parties
- Applicant: Getrude Chao Waita; Respondent: Peter Kinyua Muchendu
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Application 51 of 2005
- Procedural Posture
- Civil Application / Application to Strike Out Notice of Appeal
- Outcome
- application dismissed with costs
- Judges
- CA Otieno
- Legal Topics
- Striking Out Appeal, Notice of Appeal, Court of Appeal Rules, Record of Appeal, Supplementary Record, Form and Content of Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Getrude Chao Waita
Applicant
Peter Kinyua Muchendu
Respondent
Procedural Posture
Civil Application / Application to Strike Out Notice of Appeal
Legal Issues
- 1 Whether the application to strike out the notice of appeal is competent under rule 80 of the Court of Appeal Rules.
- 2 Whether omission of non-primary documents from the record of appeal is fatal to the appeal.
- 3 Whether the Court of Appeal is responsible for approving the correctness of an order drawn by the superior court.
Ratio Decidendi
The application to strike out the notice of appeal was dismissed because the grounds advanced did not fall within the scope of rule 80 of the Court of Appeal Rules. The court found that the absence of non-primary documents from the record of appeal is not fatal, as such documents may be included by way of a supplementary record with leave of the court. Furthermore, the court clarified that its function does not extend to approving the correctness of an order drawn by the superior court, and that the requirement is only to include a certified copy of the order appealed from. As such, the application lacked merit and was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application is dismissed with costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL OF KENYA AT MOMBASA
Civil Appli 51 of 2005
GETRUDE CHAO WAITA ……………………………………….. APPLICANT
AND
PETER KINYUA MUCHENDU …………….……….…………. RESPONDENT
(Application to strike out the notice of appeal from a ruling of the High Court of Kenya at Mombasa (Sergon J.) dated 27th June, 2003
in
H.C.C.C. NO.72 of 2003
************
RULING OF THE COURT
This is an application under rule 80 of the Court of Appeal Rules seeking an order striking out an appeal which is not identified in the motion.
That being the case and in absence of the record of appeal relating to it, we are unable to appreciate the issues raised. Besides, even if the record were available, the reasons given for seeking to have that appeal struck out do not fall within the ambit of rule 80 of the Rules of this Court.
It is also quite clear to us that documents which are not of primary nature, if they are omitted from the record of appeal, they may be put by way of a supplementary record with leave of the court in the case of the appellant, and by the respondent pursuant to rule 89(1) of the Rules.
As for the form and contents of an order appealed from, under O.XX rule 7, of the Civil Procedure Rules, it is not the function of this Court to approve the correctness or otherwise of an order drawn by the superior court. Rules 85(1)(h) of the Rules merely requires that the record of appeal includes copy of a certified order from which an appeal is preferred, which, the respondent says he did.
In the result this application has no merit and is accordingly dismissed with costs.
Dated and delivered at Mombasa this 28th day of July, 2006
R.S.C. OMOLO
…………………………
JUDGE OF APPEAL
S.E.O. BOSIRE
…………………………
JUDGE OF APPEAL
J.W. ONYANGO OTIENO
……………………………
JUDGE OF APPEAL
I certify that this is atrue copy of the original.
DEPUTY REGISTRAR