[1995] KECA 81 (KLR)
The appeal was struck out as incompetent because the appellant failed to obtain and place on record the requisite formal leave to appeal as required by law. The court further noted that the record of appeal was defective for not containing a certified copy of the order appealed from. The absence of these mandatory...
Source-derived case information.
- Citation
- [1995] KECA 81 (KLR)
- Parties
- Appellant: James Mwashori Mwakio; Respondent: Kenya Commercial Bank Ltd
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 154 of 1995
- Procedural Posture
- Civil Appeal / Ruling on Competence of Appeal
- Outcome
- appeal struck out as incompetent
- Legal Topics
- Leave to Appeal, Competence of Appeal, Record of Appeal Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Mwashori Mwakio
Appellant
Kenya Commercial Bank Ltd
Respondent
Procedural Posture
Civil Appeal / Ruling on Competence of Appeal
Legal Issues
- 1 Whether the appellant required leave of the High Court to file the appeal against the order under Order 21 rule 30, 6(1)(2).
- 2 Whether the appeal is competent in the absence of formal leave to appeal on record.
- 3 Whether the record of appeal is defective for lack of a certified copy of the order appealed from.
Ratio Decidendi
The appeal was struck out as incompetent because the appellant failed to obtain and place on record the requisite formal leave to appeal as required by law. The court further noted that the record of appeal was defective for not containing a certified copy of the order appealed from. The absence of these mandatory procedural requirements rendered the appeal fatally defective and incapable of being heard on its merits.
Court Disposition
appeal struck out as incompetent
Orders
- The appeal is hereby struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL OF KENYA AT NAIROBI Civil Appeal 154 of 1995
JAMES MWASHORI MWAKIO........................…..............APPELLANT
AND
KENYA COMMERCIAL BANK LTD..........….....….............RESPONDENT
(Appeal from the Ruling of the High Court of Kenya at Nairobi (Mr. Justice G.S. Pall)
dated 26th July, 1995
IN
H.C.C.C. NO. 2815 OF 1980)
************************
RULING OF THE COURT
The appellant has filed this appeal without leave of the superior court. For us to hear appeal against orders made or referred under order 21 rule 30, 6(1)(2) leave to appeal is require. No such leave to appeal has been obtained. The appellant informs us that the learned judge in the superior court told him he could appeal if he so wished. There is no such fact shown in the record. Leave to appeal has to be on record formally.
For this reason alone the appeal before us is incompetent.
There is yet another problem. Our copies of record of appeal as well that of Mr. Le Pelly and that of the appellant does not contain a certified copy of the order in photostat form even. How the court copy of record of appeal contains a certified copy of order is not clear.
In all circumstances this appeal be and is hereby struck out with no order as to costs.
Dated and delivered at Nairobi this 29th day of November, 1995.
J.E. GICHERU
.........................
JUDGE OF APPEEAL
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