[2001] KECA 132 (KLR)
The Court held that the notice of appeal in question substantially complied with the requirements of Form D under Rule 74(6) of the Court of Appeal Rules. The Court interpreted the phrase 'the decision' in the notice to mean the whole decision, and found that there was no ambiguity or prejudice to the applicants....
Source-derived case information.
- Citation
- [2001] KECA 132 (KLR)
- Parties
- Applicant: Mohamed Hamisi Mwabwagizo; Applicant: Salim Hamisi Mwabwagizo; Applicant: Masudi Mwachibuku Mwabwogizo; Respondent: Juma Mohamed Tuwano
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Malindi
- Jurisdiction
- Kenya
- Case Number
- ? 204 of ??
- Procedural Posture
- Civil Application / Application to Strike Out Notice of Appeal Prior to Substantive Appeal
- Outcome
- application dismissed
- Legal Topics
- Notice of Appeal, Compliance With Court Rules, Formality Requirements, Appeal Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohamed Hamisi Mwabwagizo
Applicant
Salim Hamisi Mwabwagizo
Applicant
Masudi Mwachibuku Mwabwogizo
Applicant
Juma Mohamed Tuwano
Respondent
Procedural Posture
Civil Application / Application to Strike Out Notice of Appeal Prior to Substantive Appeal
Legal Issues
- 1 Whether the notice of appeal filed by the respondent is fatally defective for not expressly stating whether the appeal is against the whole or part of the decision.
- 2 Whether substantial compliance with Form D under Rule 74(6) of the Court of Appeal Rules is sufficient for a valid notice of appeal.
Ratio Decidendi
The Court held that the notice of appeal in question substantially complied with the requirements of Form D under Rule 74(6) of the Court of Appeal Rules. The Court interpreted the phrase 'the decision' in the notice to mean the whole decision, and found that there was no ambiguity or prejudice to the applicants. The Court distinguished the situation from one where an appeal is brought only against part of a decision, in which case explicit specification would be necessary. As such, the omission to expressly state whether the appeal was against the whole or part of the decision did not render the notice fatally defective. The application to strike out the notice of appeal was therefore...
Court Disposition
application dismissed
Orders
- The motion to strike out the notice of appeal is dismissed.
- No order as to costs; costs reserved to the intended appeal.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT MOMBASA (CORAM; OMOLO, OWUOR & O'KUBASU, JJ.A.) CIVIL APPLICATION NO. NAI. 204 OF 2000 BETWEEN
1. MOHAMED HAMISI MWABWAGIZO
2. SALIM HAMISI MWABWAGIZO
3. MASUDI MWACHIBUKU
MWABWOGIZO.........................APPLICANTS
AND
JUMA MOHAMED
TUWANO.....................................RESPONDENT
(Application to strike out the notice of appeal in an intended appeal from the judgment & decree of the High Court at Mombasa (Waki, J.) dated 7th December, 1998 in H.C.C.C. NO. 1 OF 1991) ********************** RULING OF THE COURT:
The point raised by Mr. Gikandi, learned counsel for the applicants is interesting and somewhat ingenious but we do not think he has convinced us that the notice of appeal is fatally defective and that we ought to strike it out. As Mr. Gathuku for the respondent says, rightly so, in our view the notice says that the respondent to this motion intends to appeal against the decision given at Mombasa on 7th day of May, 1998. Our understanding of the phrase "the decision" is the same as that of Mr. Gathuku - it is the whole of it and that is the plain meaning of the English phrase "the decision". It is true Rule 74(3) of the Courts Rules says that the notice shall state whether it is intended to appeal against the whole or only part of the decision but Rule 74(6) says the notice shall be substantially in form D. We do not understand that expression to mean that the notice of appeal must in all respect comply with Form D. It is enough if the notice substantially complies with Form D. In our view the current notice does so. It must be clear to the applicants that the intended appeal shall be against the whole decision. The position will be different if the appeal were to be brought only against part of the decision. In that event the applicants would be entitled to take the challenge they are raising now. We reject Mr. Gikandi's submissions and accept those of Mr. Gathuku. That being our view of the matter we order that the motion be and is hereby dismissed but we decline to award the costs thereof to the respondent and reserve those costs to be in the intended appeal.
Dated and delivered at Mombasa this 26th day of January, 2001.
R.S.C. OMOLO .............
JUDGE OF APPEAL
E. OWUOUR ...............
JUDGE OF APPEAL
E. O'KUBASU ..............
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR