[2000] KECA 259 (KLR)
The court held that the omission of an order granting leave to appeal from the record of appeal does not render the appeal incurably defective, as such leave can be brought on record by way of a supplementary record of appeal pursuant to the Court of Appeal Rules. The court recognized the need for expeditious...
Source-derived case information.
- Citation
- [2000] KECA 259 (KLR)
- Parties
- Appellant: Mumbi w/o Mwangi; Appellant: Geoffrey Kinyua Mwangi; Appellant: A.P.Pliwcaakntonsyu w/o Mwangi; Appellant: Stephen Mwangi Muriithi; Respondent: Public Trustee; Respondent: Justine Mundia Mwangi; Respondent: Geoffrey Gichohi Mwangi; Respondent: Charles Maina Mwangi; Respondent: Leonard Njogu Mwangi; Respondent: Francis Ngatia Mwangi; Respondent: Wanjiku w/o Mwangi; Respondent: Kiini w/o Mwangi
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 99 of 1998
- Procedural Posture
- Civil Appeal / Application for Adjournment Pending Leave to Appeal
- Outcome
- Application for adjournment granted; appeal stood over to a later date; appellants to pay today's costs.
- Judges
- E Owuor, D Ole Keiwua
- Legal Topics
- Leave to Appeal, Adjournment, Probate and Administration, Supplementary Record of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mumbi w/o Mwangi
Appellant
Geoffrey Kinyua Mwangi
Appellant
A.P.Pliwcaakntonsyu w/o Mwangi
Appellant
Stephen Mwangi Muriithi
Appellant
Public Trustee
Respondent
Justine Mundia Mwangi
Respondent
Geoffrey Gichohi Mwangi
Respondent
Charles Maina Mwangi
Respondent
Leonard Njogu Mwangi
Respondent
Francis Ngatia Mwangi
Respondent
Wanjiku w/o Mwangi
Respondent
Kiini w/o Mwangi
Respondent
Procedural Posture
Civil Appeal / Application for Adjournment Pending Leave to Appeal
Legal Issues
- 1 Whether the absence of leave to appeal renders the record of appeal incurably defective.
- 2 Whether the appeal should be adjourned to allow the appellants to obtain leave to appeal.
Ratio Decidendi
The court held that the omission of an order granting leave to appeal from the record of appeal does not render the appeal incurably defective, as such leave can be brought on record by way of a supplementary record of appeal pursuant to the Court of Appeal Rules. The court recognized the need for expeditious disposal of the matter but found it important that all parties be given a fair opportunity to present their cases, especially given the contentious nature of the dispute over a deceased person's estate. Accordingly, the court granted the application for adjournment, removed the appeal from the day's hearing list, and directed that it be refixed for hearing at a convenient date. The...
Court Disposition
Application for adjournment granted; appeal stood over to a later date; appellants to pay today's costs.
Orders
- The application for adjournment is granted.
- The appeal is taken out of today's hearing list and stood over to an early date to be refixed at the Registry.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAIROBI (BOSIRE, OWUOR & KEIWUA JJ.A) CIVIL APPEAL NO. 99 OF 1998 BETWEEN
1. MUMBI W/O MWANGI )
2. GEOFFREY KINYUA MWANGI )....................
3A.PPLIWCAAKNOTNSYU W/O MWANGI )
4. STEPHEN MWANGI MURIITHI )
AND
1. PUBLIC TRUSTEE )
2. JUSTINE MUNDIA MWANGI )
3. GEOFFREY GICHOHI MWANGI )
4. CHARLES MAINA MWANGI )
5. LEONARD NJOGU MWANGI )
6. FRANCIS NGATIA MWANGI )
7. WANJIKU W/O MWANGI )
8. KIINI W/O MWANGI )................... RESPONDENTS
(Appeal from the ruling and order of the High Court of Kenya at Nyeri (Honourable Justice Mary Ang'awa) dated 30th November, 1995
in HC.C. Misc. Adm. Cause No.43 of 1983(O.S) ******************************* RULING OF THE COURT
Counsel for the appellants, Mr Muthoga, applies for the adjournment of this appeal to enable him move this court for leave to appeal which it would appear was not obtained as required by the Provisions of Section 75 of the Civil Procedure Act. Mr Marete for the Ist respondent, and Miss Mukuha for the 2nd to 8th respondents oppose the application arguing that the dispute between the parties has been outstanding for a long time, and should therefore, be resolved expeditiously. We agree there is need for the expeditious disposal of this matter. However, the dispute between the parties revolves round a residual estate of a deceased person, and appears to have generated a lot of heat between the parties. It is important that it be resolved appropriately, and all the parties be given a chance to urge their respective cases.
An order granting leave to appeal is one which may be brought on record by a supplementary record of appeal by dint of the provisions of rule 85(2A) as read with rule 89 (1) of the Rules of this court. So its omission from the record of appeal does not render the record of appeal incurably defecItni vet.he result we grant the application for adjournment, and take out the appeal from today's hearing list and stand it over to an early date to be refixed at the Registry, convenient to the court and the parties. The appellants shall pay tDoadtaeyd' s ancdo stdse.livered at Nairobi this 10th day of February 2000.
S.E.O. BOSIRE
..............
JUDGE OF APPEAL
E. OWUOR
............
JUDGE OF APPEAL
M. KEIWUA
...............
JUDGE OF APPEAL
I certify that this is a true copy of the original. DEPUTY REGISTRAR