[1996] KECA 21 (KLR)
The Court of Appeal held that the failure to include a certified copy of the order sought to be appealed against in the record of appeal is a fatal defect under rule 85(i)(h) of the Court of Appeal Rules. This omission renders the appeal incompetent and defective, warranting its striking out. The court emphasized...
Source-derived case information.
- Citation
- [1996] KECA 21 (KLR)
- Parties
- Appellant: Jerome Mwathi Kaumbulu; Appellant: Professor J. K. Maitha; Respondent: Sila Husyimi Ndolo
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 119 of 1994
- Procedural Posture
- Civil Appeal / Order Striking Out Appeal
- Outcome
- Appeal struck out as incompetent.
- Judges
- GS Pall
- Legal Topics
- Appeal Record Requirements, Striking Out Appeal, Court of Appeal Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Jerome Mwathi Kaumbulu
Appellant
Professor J. K. Maitha
Appellant
Sila Husyimi Ndolo
Respondent
Procedural Posture
Civil Appeal / Order Striking Out Appeal
Legal Issues
- 1 Whether the appeal is competent in the absence of a certified copy of the order appealed against as required by the Court of Appeal Rules.
Ratio Decidendi
The Court of Appeal held that the failure to include a certified copy of the order sought to be appealed against in the record of appeal is a fatal defect under rule 85(i)(h) of the Court of Appeal Rules. This omission renders the appeal incompetent and defective, warranting its striking out. The court emphasized the mandatory nature of the procedural requirement and found no basis to excuse non-compliance. Consequently, the appeal was struck out for want of compliance with the rules.
Court Disposition
Appeal struck out as incompetent.
Orders
- The appeal is struck out for failure to comply with rule 85(i)(h) of the Court of Appeal Rules.
- No order as to costs.
Full Case Text
Judgment text and source record
25 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM OMOLO, TUNOI & PALL JJA)
CIVIL APPEAL NO. 119 OF 1994
BETWEEN
JEROME MWATHI KAUMBULU
PROFESSOR J. K. MAITHA......................APPELLANTS
AND
SILA HUSYIMI NDOLO...........................RESPONDENTS
(Appeal from the ruling of the High Court of Kenya sitting at Machakos (Hon. Justice Osiemo) dated 7th June, 1994
in
H.C.C.C. NO. 56 OF 1994 (0. S))
***************************
ORDER OF THE COURT
The record of appeal lodged in this court on 18th July, 1994 does not incorporate a certified copy of the order sought to be appealed against contrary to rule 85(i)(h) of the Rules of this Court. The appeal therefore is rendered defective and incompetent. In the circumstances it is struck out. We make no order to costs.
Dated and delivered at Nairobi this 17th day of October, 1996.
R. S. C. OMOLO
.............................
JUDGE OF APPEAL
P. K. TUNOI
...........................
JUDGE OF APPEAL
G. S. PALL
..............................
JUDGE OF APPEAL