[1996] KECA 53 (KLR)
The Court of Appeal held that, pursuant to Order 43 rule 17(2), no appeal lies from a judgment entered in terms of an award. The appellant's attempt to frame the appeal as arising from a review application was deemed an attempt to circumvent the law. The court found no error apparent on the face of the record and no...
Source-derived case information.
- Citation
- [1996] KECA 53 (KLR)
- Parties
- Appellant: Mutahi Watata; Respondent: Mutahi Irungu
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 230 of 1995
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed with costs
- Judges
- RO Kwach
- Legal Topics
- Appeals From Awards, Review Applications, Competency of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mutahi Watata
Appellant
Mutahi Irungu
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether an appeal lies from a judgment entered in terms of an award under Order 43 rule 17(2).
- 2 Whether the application for review raised any error apparent on the face of the record or any new matter justifying review.
Ratio Decidendi
The Court of Appeal held that, pursuant to Order 43 rule 17(2), no appeal lies from a judgment entered in terms of an award. The appellant's attempt to frame the appeal as arising from a review application was deemed an attempt to circumvent the law. The court found no error apparent on the face of the record and no new matter raised in the application for review. Therefore, the High Court's refusal to grant the review was justified, rendering the appeal incompetent and warranting its dismissal with costs.
Court Disposition
appeal dismissed with costs
Orders
- The appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT NYERI
Civil Appeal 230 of 1995
MUTAHI WATATA……………....................................APPELLANT
AND
MUTAHI IRUNGU……...............................................RESPONDENT
(An appeal from the orders of the High Court of Kenya at Nyeri (Lady Justice Ang’awa) dated 22nd June, 1995
IN
H. C. C. C. NO. 114 OF 1984)
***********************
JUDGMENT OF THE COURT
In this appeal, judgment was entered in terms of the award. Under O.43r.17(2) no appeal shall lie. Accordingly, the appeal from the decree is incompetent. It was submitted that the appeal was from an application of review. This is an attempt to circumvent the law. We do not find that there is any error apparent on the face of the record. No new matter has been raised. In the result, the refusal of the application by the learned Judge was fully justified. Accordingly, the appeal fails and is dismissed with costs.
Dated and delivered at Nyeri this 17th day of May, 1996.
R. O. KWACH
………………..
JUDGE OF APPEAL
R. S. C. OMOLO
………………..
JUDGE OF APPEAL
A. A. LAKHA
………………..
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR