[1999] KECA 117 (KLR)
The Court held that the absence of a certified copy of the decree from the Magistrate's Court, a primary document required under rule 85(2) of the Court of Appeal Rules, rendered the appeal incompetent. The rules do not permit the lodgment of such a document by way of a supplementary record. As a result, granting an...
Source-derived case information.
- Citation
- [1999] KECA 117 (KLR)
- Parties
- Appellant: Kirimi M'Muna; Respondent: Peter Riungu
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- ? 268 of 1998
- Procedural Posture
- Civil Appeal / Order Striking Out Appeal
- Outcome
- appeal struck out as incompetent
- Legal Topics
- Appeal Record Requirements, Decree Certification, Adjournment, Incompetent Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kirimi M'Muna
Appellant
Peter Riungu
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 decree from the Magistrate's Court.
- 2 Whether an adjournment should be granted to allow rectification of the record of appeal.
Ratio Decidendi
The Court held that the absence of a certified copy of the decree from the Magistrate's Court, a primary document required under rule 85(2) of the Court of Appeal Rules, rendered the appeal incompetent. The rules do not permit the lodgment of such a document by way of a supplementary record. As a result, granting an adjournment would not cure the defect. The appeal was therefore struck out for incompetence, with no order as to costs.
Court Disposition
appeal struck out as incompetent
Orders
- The appeal is struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
COURT OF APPEAL AT NYERI
civ app 268 of 98
KIRIMI M'MUNA.......................................APPELLANT
AND
PETER RIUNGU........................................RESPONDENT
ORDER OF THE COURT
The "Order" against which this appeal is filed is undated and drawn up in a total disregard of what a "decree" should read. This is a primary document. In addition there is no certified copy of the decree of the Magistrate's Court. This again is a primary document to be included in the record of appeal under rule 85(2) of the Rules of this Court as read with rule 85(1) and rule 85(2A) cannot permit lodgment of such document by way of a supplementary record. It is on these basis that we refuse to grant the adjournment sought. The appeal being incompetent an adjournment will not help. This appeal is struck out but with no order as to costs.
Made and dated at Nyeri this 28th day of October, 1999.
R.O. KWACH ..................
JUDGE OF APPEAL
A.M. AKIWUMI .................
JUDGE APPEAL
A.B. SHAH ..................
JUDGE OF APPEAL
I certify that this is
a true copy of the original.
DEPUTY REGISTRAR.