[1996] KECA 7 (KLR)
The Court found that the record of appeal was fatally defective because it did not contain a certified copy of the decree appealed against and did not include the whole judgment in all quadruplicates of the record. These omissions are mandatory requirements under the rules governing civil appeals. The presence of...
Source-derived case information.
- Citation
- [1996] KECA 7 (KLR)
- Parties
- Appellant: Mubangi Wathenya; Respondent: Mwangi Kaninu
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 38 of 1989
- Procedural Posture
- Civil Appeal / Order on Competency of Appeal
- Outcome
- appeal struck out as incompetent
- Judges
- AM Akiwumi, GS Pall
- Legal Topics
- Appeal Record Requirements, Incompetent Appeal, Decree Certification, Judgment Completeness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Mubangi Wathenya
Appellant
Mwangi Kaninu
Respondent
Procedural Posture
Civil Appeal / Order on Competency of Appeal
Legal Issues
- 1 Whether the record of appeal was complete and complied with mandatory requirements.
- 2 Whether the omission of a certified copy of the decree and the full judgment rendered the appeal incompetent.
Ratio Decidendi
The Court found that the record of appeal was fatally defective because it did not contain a certified copy of the decree appealed against and did not include the whole judgment in all quadruplicates of the record. These omissions are mandatory requirements under the rules governing civil appeals. The presence of other discrepancies, such as differing dates of the notice of appeal, further undermined the integrity of the record. As a result, the appeal was deemed incurably incompetent and was struck out. The Court exercised its discretion not to award costs to the respondent.
Court Disposition
appeal struck out as incompetent
Orders
- The appeal is struck out for being incurably incompetent.
- There will be no order as to costs for the respondent.
Full Case Text
Judgment text and source record
26 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: AKIWUMI,TUNOI & PALL, JJ.A.)
CIVIL APPEAL NO. 38 OF 1989
BETWEEN
MUBANGI WATHENYA……....……………..APPELLANT
AND
MWANGI KANINU………………………..RESPONDENT
(Appeal from the judgement of the High Court of Kenya at Nairobi (Mr. Justice Schofield) dated 2nd December, 1978
in
H.C.C.C. NO. 3112 OF 1978)
*********************
ORDER OF THE COURT
The record of appeal and that means all the quadruplicates, must contain a certified copy, in this case, the decree appealed against, The record must also contain the whole judgment, not only part of it as exists in some copies of the record of appeal, These omissions render the appeal incurably incompetent and it is hereby struck-against from the foregoing omissions, there are other discrepancies in the record of appeal which for instance, differing dates of the notice of appeal. There will be no costs for the respondent.
Dated and delivered at Nairobi this 7th day of November, 1996.
A.M. AKIWUMI
………………………
JUDGE OF APPEAL
P. K. TUNOI
………………………
JUDGE OF APPEAL
G. S. PALL
………………………
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR