[1996] KECA 5 (KLR)
The Court held that the failure to include a certified copy of the decree in the record of appeal is a mandatory procedural requirement under rule 35(1)(b) of the Court of Appeal Rules. Non-compliance with this requirement renders the appeal incurably defective and incompetent. Consequently, the appeal was struck...
Source-derived case information.
- Citation
- [1996] KECA 5 (KLR)
- Parties
- Appellant: Mr Mutemi Shadrack K. Ndegwa; Respondent: Philip Munyao Ngumbi
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 5 of 1995
- Procedural Posture
- Civil Appeal / Order Striking Out Appeal
- Outcome
- Appeal struck out as incompetent for failure to include a certified copy of the decree.
- Judges
- AM Akiwumi
- Legal Topics
- Appeal Record Requirements, Striking Out Appeal, Procedural Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mr Mutemi Shadrack K. Ndegwa
Appellant
Philip Munyao Ngumbi
Respondent
Procedural Posture
Civil Appeal / Order Striking Out Appeal
Legal Issues
- 1 Whether the absence of a certified copy of the decree in the record of appeal renders the appeal incompetent.
Ratio Decidendi
The Court held that the failure to include a certified copy of the decree in the record of appeal is a mandatory procedural requirement under rule 35(1)(b) of the Court of Appeal Rules. Non-compliance with this requirement renders the appeal incurably defective and incompetent. Consequently, the appeal was struck out for want of compliance with the procedural rules.
Court Disposition
Appeal struck out as incompetent for failure to include a certified copy of the decree.
Orders
- The appeal is struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
27 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: AKIWUMI, LAKHA JJ.A & BOSIRE AG. J.A )
CIVIL APPEAL No. 5 of 1995
BETWEEN
MR MUTEMI SHADRACK K. NDEGWA…..……………APPELLANTS
AND
PHILIP MUNYAO NGUMBI……………………..……….RESPONDENT
(Being an appeal from the judgment of the High Court of Kenya at Machakos (Justice Osiemo) on the 5th May, 1994
in
H.C.C.C. No. 17 of 1993)
***************
ORDER OF THE COURT
The record of appeal does not include a certified copy of decree as is mandatorily required by rule 35(1)(b) of the rules of this court. Accordingly the appeal is incurably defective as renders the appeal incompetent. It is therefore struck out with no order as to costs.
Dated and delivered at Nairobi this 16th day of December 1996.
A.M. AKIWUMI
………………………
JUDGE OF APPEAL
A.A. LAKHA
………………………
JUDGE OF APPEAL
S.E.O. BOSIRE
………………………….
AG. JUDGE OF APPEAL
I certify that this is a
true copy of the original.
DEPUTY REGISTRAR