[1996] KECA 181 (KLR)
The Court of Appeal found that the appeal was wholly incompetent because it was a third appeal, which is expressly barred by section 72(2) of the Civil Procedure Act. Furthermore, the order purportedly appealed from was not certified as required by law. As a result, there was no valid appeal before the court, and...
Source-derived case information.
- Citation
- [1996] KECA 181 (KLR)
- Parties
- Appellant: Joseph Mwaniki Murimi; Appellant: Peter Maina Murimi; Respondent: Mwangi Ndere; Respondent: Mwea Gocho
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 110 of 1992
- Procedural Posture
- Civil Appeal / Ruling on Competence of Appeal
- Outcome
- Appeal struck out as incompetent.
- Judges
- JE Gicheru, AB Shah
- Legal Topics
- Appeal Jurisdiction, Competence of Appeal, Certification of Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Mwaniki Murimi
Appellant
Peter Maina Murimi
Appellant
Mwangi Ndere
Respondent
Mwea Gocho
Respondent
Procedural Posture
Civil Appeal / Ruling on Competence of Appeal
Legal Issues
- 1 Whether the appeal is competent before the Court of Appeal under section 72(2) of the Civil Procedure Act.
- 2 Whether the order appealed from was properly certified for purposes of appeal.
- 3 Whether a third appeal lies to the Court of Appeal in the circumstances.
Ratio Decidendi
The Court of Appeal found that the appeal was wholly incompetent because it was a third appeal, which is expressly barred by section 72(2) of the Civil Procedure Act. Furthermore, the order purportedly appealed from was not certified as required by law. As a result, there was no valid appeal before the court, and nothing to withdraw. The court therefore struck out the appeal as incompetent and made no order as to costs.
Court Disposition
Appeal struck out as incompetent.
Orders
- The appeal is struck out as incompetent.
- No order as to costs.
Full Case Text
Judgment text and source record
30 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: GICHERU, OMOLO & SHAH, JJ.A.)
CIVIL APPEAL NO. 110 OF 1992
BETWEEN
1. JOSEPH MWANIKI MURIMI
2. PETER MAINA MURIMI ........................... APPELLANTS
AND
1. MWANGI NDERE
2. MWEA GOCHO .................................... RESPONDENTS
(Appeal from the Judgment and Order of the High Court of Kenya at Nairobi - Mrs.
Justice Lady Aluoch dated 19th December, 1990
in
Civil Appeal No. 56 Of 1988)
*************
RULING OF THE COURT
The appeal is wholly incompetent and there is nothing to withdraw. The "Order" at page 47 of the record is the one purportedly appealed against. It is not certified. Again this is a third appeal to us. Under section 72 (2) of the Civil Procedure Act, the appeal does not lie to this court. We accordingly order the appeal struck out as incompetent but we make no order as to costs.
Dated and delivered at Nairobi this 23rd day of April, 1996.
J. E. GICHERU
..............................
JUDGE OF APPEAL
R. S. C. OMOLO
................................
JUDGE OF APPEAL
A. B. SHAH
..................................
JUDGE OF APPEAL
I certify that this is a
true copy of the original.
DEPUTY REGISTRAR