[1995] KECA 82 (KLR)
The Court held that the omission of a certified copy of the order sought to be appealed against from the record of appeal is a fatal defect under Rule 85(1)(h) of the Court of Appeal Rules. As a result, the appeal is incurably incompetent and must be struck out. The Court emphasized that compliance with procedural...
Source-derived case information.
- Citation
- [1995] KECA 82 (KLR)
- Parties
- Appellant: Hudson Ng'ang'a; Respondent: Dick Schmitt
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 14 of 1995
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection Regarding Competency of Appeal
- Outcome
- Appeal struck out as incompetent.
- Legal Topics
- Appeal Record Requirements, Competency of Appeal, Court of Appeal Rules
- Source Language
- en
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Summary, issues, holding and outcome
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Parties
Hudson Ng'ang'a
Appellant
Dick Schmitt
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection Regarding Competency of Appeal
Legal Issues
- 1 Whether the failure to include a certified copy of the order appealed against renders the appeal fatally defective under 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 sought to be appealed against from the record of appeal is a fatal defect under Rule 85(1)(h) of the Court of Appeal Rules. As a result, the appeal is incurably incompetent and must be struck out. The Court emphasized that compliance with procedural requirements for the record of appeal is mandatory and non-compliance cannot be cured, thus necessitating the striking out of the appeal.
Court Disposition
Appeal struck out as incompetent.
Orders
- The appeal is struck out for being incurably incompetent due to failure to include a certified copy of the order appealed against.
- No order as to costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL OF KENYA AT MOMBASA
Civil Appeal 14 of 1995
HUDSON NG’ANG’A………………………..................................................................……...APPELLANT
AND
DICK SCHMITT…………........................................……...........................................……. RESPONDENT
(Appeal from a ruling of the High Court of Kenya at Mombasa (Justice Wambilyangah) dated 12th October, 1994
IN
H.C.C.A NO. 71 OF 1991)
*********************
RULING OF THE COURT
The record of appeal filed on 8th December, 1994 does not contain a certified copy of the Order sought to be appealed against. Consequently, under Rule 85(1)(h) of the Court of Appeal Rules is fatally defective and incompetent. It follows, therefore, that the appeal so filed is incurably incompetent and we strike it out with no order as to costs.
Dated and delivered at Mombasa this 21st day of July, 1995.
R. O. KWACH
………………….
JUDGE OF APPEAL
R. S. C. OMOLO
………………….
JUDGE OF APPEAL
A. A. LAKHA
………………….
JUDGE OF APPEAL