[2021] KECA 355 (KLR)
The court found that the applicants had not placed on record the original record of appeal or the intended supplementary record, making it impossible to ascertain compliance with Rule 87(1) of the Court of Appeal Rules. Additionally, there was no evidence that the application had been served on the respondents as...
Source-derived case information.
- Citation
- [2021] KECA 355 (KLR)
- Parties
- Appellant: Grace Wairimu Machua; Appellant: Rosemary Wamaitha Kamau; Respondent: Jacinta Nduta
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 45 of 2019
- Procedural Posture
- Civil Appeal / Ruling on Interlocutory Application
- Outcome
- Application referred to Deputy Registrar for determination.
- Judges
- KI Laibuta
- Legal Topics
- Supplementary Record of Appeal, Leave to File Out of Time, Service of Process, Court of Appeal Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Grace Wairimu Machua
Appellant
Rosemary Wamaitha Kamau
Appellant
Jacinta Nduta
Respondent
Procedural Posture
Civil Appeal / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the applicants have complied with the procedural requirements for filing a supplementary record of appeal.
- 2 Whether the application for leave to file a supplementary record of appeal was properly served on the respondents.
- 3 Whether the application ought to be determined by the Deputy Registrar under Rule 88 of the Court of Appeal Rules.
Ratio Decidendi
The court found that the applicants had not placed on record the original record of appeal or the intended supplementary record, making it impossible to ascertain compliance with Rule 87(1) of the Court of Appeal Rules. Additionally, there was no evidence that the application had been served on the respondents as required by Rule 92(3). The court further held that, in any event, an application under Rule 88 for leave to file a supplementary record of appeal should be made to the Deputy Registrar, not to the judge. Consequently, the application was not properly before the court and was directed to be listed before the Deputy Registrar for determination.
Court Disposition
Application referred to Deputy Registrar for determination.
Orders
- The Applicants’ Notice of Motion dated 1st April 2021 be listed before the Deputy Registrar for determination.
Full Case Text
Judgment text and source record
22 paragraphs
Machua & another v Nduta (Civil Appeal 45 of 2019) [2021] KECA 355 (KLR) (17 December 2021) (Ruling)
Neutral citation: [2021] KECA 355 (KLR)
Republic of Kenya
In the Court of Appeal at Nairobi
Civil Appeal 45 of 2019
K.I Laibuta, JA
December 17, 2021
Between
Grace Wairimu Machua
1st Appellant
Rosemary Wamaitha Kamau
2nd Appellant
and
Jacinta Nduta
Respondent
(Being an application to Substitute the 2nd Appellant in the appeal from the Judgment of the High Court of Kenya at Nairobi (Ougo, J) dated 9th November 2017In HCCC NO. 2989 OF 2004)
Ruling
1. Before me is a Notice of Motion dated 1st April 2021 made under Rule 88 of the Court of Appeal Rules in which the Applicants, David Rodney Green and Deborah Jane Green, seek leave to file a supplementary record of appeal from the judgment and decree of the Environment and Land Court of Kenya at Malindi (Hon. Lady Justice J. O. Olola) dated the 6th day of May 2020 in Malindi Environment and Land Court Civil Case No. 25 of 2018.
2. The application is supported by the annexed affidavit of Meenad Hassan, counsel for the applicants, sworn on 1st April 2021. It is made on 9 grounds set out on the face of the Motion and restated in the supporting affidavit.
3. Having read the applicants’ Notice of Motion and the supporting affidavit, I find that–(a)the record of appeal said to have been lodged on 9th December 2020 and the intended supplementary record of appeal are not on file and, in the circumstances, I am unable to ascertain compliance with Rule 87(1) of the Court of Appeal Rules;(b)there is nothing on record to show that the application before me has been served on the Respondents as required by Rule 92(3); and(c)in any event, an application under Rule 88 for leave to file a supplementary record of appeal ought to be made to the Deputy Registrar.
Order 4. The Applicants’ Notice of Motion dated 1st April 2021 be listed before the Deputy Registrar for determination.
DATED AND DELIVERED AT NAIROBI THIS 17THDAY OF DECEMBER, 2021DR. K. I. LAIBUTA.....................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR