[1997] KECA 344 (KLR)
The Court held that the omission of a certified copy of the order appealed against from the record of appeal is a fatal defect under rule 85(1)(h) of the Court of Appeal Rules. Since this document is a primary requirement, its absence renders the appeal incurably incompetent. The appellant's counsel did not dispute...
Source-derived case information.
- Citation
- [1997] KECA 344 (KLR)
- Parties
- Appellant: Gitamaiyu Trading Company Limited; Respondent: Njenga Karume; Respondent: James Njenga Karume; Respondent: Wariara Njenga; Respondent: Mumbi Gichuru
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 2 of 1994
- Procedural Posture
- Civil Appeal / Application to Strike Out Appeal
- Outcome
- Appeal struck out as incompetent with costs to the respondents.
- Judges
- RO Kwach, AB Shah
- Legal Topics
- Appeal Striking Out, Record of Appeal Requirements, Court of Appeal Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gitamaiyu Trading Company Limited
Appellant
Njenga Karume
Respondent
James Njenga Karume
Respondent
Wariara Njenga
Respondent
Mumbi Gichuru
Respondent
Procedural Posture
Civil Appeal / Application to Strike Out Appeal
Legal Issues
- 1 Whether the omission of a certified copy of the order appealed against from the record renders the appeal incompetent.
- 2 Whether the appeal should be struck out for non-compliance with rule 85(1)(h) of the Court of Appeal Rules.
Ratio Decidendi
The Court held that the omission of a certified copy of the order appealed against from the record of appeal is a fatal defect under rule 85(1)(h) of the Court of Appeal Rules. Since this document is a primary requirement, its absence renders the appeal incurably incompetent. The appellant's counsel did not dispute the omission. Consequently, the appeal was struck out as incompetent, and costs were awarded to the respondents both for the appeal and the motion.
Court Disposition
Appeal struck out as incompetent with costs to the respondents.
Orders
- The appeal is struck out as incompetent.
- The respondents are awarded the costs of the appeal.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
CORAM: KWACH, TUNOI & SHAH, JJ.A.
CIVIL APPEAL NO. 2 OF 1994
BETWEEN
GITAMAIYU TRADING COMPANY LIMITED ................ APPELLANT
AND
1. NJENGA KARUME
2. JAMES NJENGA KARUME
3. WARIARA NJENGA........................ RESPONDENTS
4. MUMBI GICHURU
(Appeal from the Ruling of the High Court of Kenya at Nairobi (Justice S.E.O. Bosire) dated 16th February, 1993 in CIVIL CASE NO. 3499 OF 1992) *************
RULING OF THE COURT
This is an application under rule 80 of the Court of Appeal Rules by which the respondents seek to strike out the appeal on the ground that the record of appeal does not contain a certified copy of the order appealed against as required by rule 85(1)(h) of the Rules of this Court. This is a primary document and its exclusion renders the appeal incurably incompetent. Mr Bigogo does not dispute the fact that the order does not form part of the record of appeal. That being the case, the appeal is struck out as incompetent with costs to the respondents. The respondents will also have the costs of the motion.
Dated and delivered at Nairobi this 16th day of April, 1997.
R.O. KWACH
..................
JUDGE OF APPEAL
P.K. TUNOI
..................
JUDGE OF APPEAL
A.B. SHAH
...................
JUDGE OF APPEAL
I certify that this is a true copy of the original. DEPUTY REGISTRAR