[1997] KECA 246 (KLR)
The court found that the Notice of Appeal filed by the respondents was not signed as required by rule 74(6) of the Court of Appeal Rules. Even if the existing signature was considered, there should have been two signatures, not just one. Furthermore, since no appeal was lodged after the filing of the notice, the...
Source-derived case information.
- Citation
- [1997] KECA 246 (KLR)
- Parties
- Applicant: Gibson Mugwe Murathi; Respondent: Wangari Kanyari Mwangi Ndoria
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- ? 343 of 1996
- Procedural Posture
- Civil Application / Ruling on Application to Strike Out Notice of Appeal
- Outcome
- application allowed; notice of appeal struck out with costs to applicant
- Judges
- RO Kwach, GS Pall
- Legal Topics
- Notice of Appeal, Court of Appeal Rules, Striking Out Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gibson Mugwe Murathi
Applicant
Wangari Kanyari Mwangi Ndoria
Respondent
Procedural Posture
Civil Application / Ruling on Application to Strike Out Notice of Appeal
Legal Issues
- 1 Whether the Notice of Appeal filed by the respondents was invalid for lack of proper signature as required by the Court of Appeal Rules.
- 2 Whether the absence of a valid Notice of Appeal results in the notice being deemed withdrawn under rule 82 of the Court of Appeal Rules.
Ratio Decidendi
The court found that the Notice of Appeal filed by the respondents was not signed as required by rule 74(6) of the Court of Appeal Rules. Even if the existing signature was considered, there should have been two signatures, not just one. Furthermore, since no appeal was lodged after the filing of the notice, the notice was deemed withdrawn under rule 82. The combination of these procedural defects rendered the Notice of Appeal invalid, and the court accordingly struck it out with costs to the applicant.
Court Disposition
application allowed; notice of appeal struck out with costs to applicant
Orders
- The Notice of Appeal filed by the respondents on 24th May, 1995, is struck out.
- Costs awarded to the applicant.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NYERI
(CORAM: KWACH, PALL, JJ.A. & BOSIRE, AG.J.A.)
CIVIL APPLICATION NO. NAI. 343 OF 1996
BETWEEN
GIBSON MUGWE MURATHI ................................. APPLICANTS
AND
WANGARI KANYARI MWANGI NDORIA ........................................ RESPONDENT
(An application for striking out Notice of Appeal in an intended appeal from a Judgment/Decree of the High Court of Kenya at Nyeri (Justice Tunoi) dated 24th September, 1992 in H.C.C.A. NO. 61 OF 1986) ******************
RULING OF THE COURT
This is an application under rule 80 of the Court of Appeal Rules seeking an order striking out the Notice of Appeal filed on 24th May, 1995, on the ground that it was not signed by or on behalf of the respondents in breach of rule 74(6) of the Rules of this Court. A notice of appeal is required to be substantially in Form in the First Schedule.
In the notice which is the subject of the present application, there is no signature at the appropriate place. And even if the signature at the bottom left-hand were to be regarded as a signature for the purposes of the rule, there should have been two signatures, not just one. Since filing the purported notice, the respondents have not lodged an appeal. Their notice is accordingly deemed to have been withdrawn under rule 82 of the Rules of this Court. For these reasons, the application succeeds and the Notice of Appeal filed by the respondents is hereby struck out with costs to the applicant.
Made at Nyeri this 13th day of May, 1997.
R.O. KWACH
.................
JUDGE OF APPEAL
G.S. PALL
.................
JUDGE OF APPEAL
S.E.O. BOSIRE
....................
AG.JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR