[1998] KECA 279 (KLR)
The appeal was struck out because it was not based on any valid decree, as the original decree had been set aside and no fresh decree was drawn up or agreed upon by the parties. This rendered the appeal incurably defective. Additionally, the appellants failed to serve the 2nd respondent, a party directly affected by...
Source-derived case information.
- Citation
- [1998] KECA 279 (KLR)
- Parties
- Appellant: Kitale Elgon Co-op. Union Ltd; Appellant: Michael F.C. Kitiyo; Appellant: John Chepsigor; Respondent: Seth Nyaware Omamo; Respondent: Agricultural Finance Corporation
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 109 of 1998
- Procedural Posture
- Civil Appeal / Ruling on Application to Strike Out Appeal
- Outcome
- appeal struck out
- Legal Topics
- Appeal Striking Out, Service of Notice, Decree Validity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kitale Elgon Co-op. Union Ltd
Appellant
Michael F.C. Kitiyo
Appellant
John Chepsigor
Appellant
Seth Nyaware Omamo
Respondent
Agricultural Finance Corporation
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Strike Out Appeal
Legal Issues
- 1 Whether the appeal is competent in the absence of a valid decree.
- 2 Whether the 2nd respondent was properly served with the notice of appeal as required by law.
Ratio Decidendi
The appeal was struck out because it was not based on any valid decree, as the original decree had been set aside and no fresh decree was drawn up or agreed upon by the parties. This rendered the appeal incurably defective. Additionally, the appellants failed to serve the 2nd respondent, a party directly affected by the appeal, with the notice of appeal as required by the Court of Appeal Rules. Even if the appellants believed the 2nd respondent was not directly affected, they were obliged to seek the court's direction under the proviso to Rule 76(1). These procedural defects were fatal and warranted the striking out of the appeal.
Court Disposition
appeal struck out
Orders
- The application to strike out the appeal is allowed.
- The appeal is hereby struck out as prayed.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
CORAM: OMOLO, TUNOI & OWUOR, JJ.A. CIVIL APPEAL NO. 109 OF 1998
BETWEEN
KITALE ELGON CO-OP. UNION LTD
MICHAEL F.C. KITIYO
JOHN CHEPSIGOR ......................................APPELLANTS
AND
SETH NYAWARE OMAMO
AGRICULTURAL FINANCE CORPORATION ....................RESPONDENTS
RULING OF THE COURT
This appeal is obviously incurably defective. The decree upon which the appeal is purportedly based was set aside by a judge of the superior court way back on the 13th May, 1991 and the parties were then directed to agree on a fresh decree. Apparently none was drawn up and agreed upon. So in effect the appeal is not against any decree. That in itself, is a fatal defect. There is also the issue whether the 2nd respondent was ever served with the notice of appeal. The 2nd respondent is a party directly affected by the appeal and the appellant was bound to serve them. But even if the appellant thought the 2nd respondent was not directly affected the appellant was obliged to seek the direction of the court under the proviso to Rule 76 (1) of the Court's Rules. We accordingly allow the application to strike out the appeal and order that the appeal be and is hereby struck out as prayed.
We award the costs of the motion to strike out to two respondents to the appeal but we make no order as to the costs of the appeal itself.
Dated and delivered at Nairobi this 7th day of December,
1998.
R. S. C. OMOLO
---------------
JUDGE OF APPEAL
P. K. TUNOI ---------------
JUDGE OF APPEAL
E. OWUOR
---------------
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR