[1984] KECA 93 (KLR)
The Court of Appeal held that the omission of the formally drawn up decree or order from the record of appeal is a fundamental jurisdictional defect. This defect cannot be cured and necessitates the striking out of the appeal. The court further found that the notice of hearing, in the circumstances where the...
Source-derived case information.
- Citation
- [1984] KECA 93 (KLR)
- Parties
- Appellant: Mutuku and Associates; Respondent: Felix R M Kitonga & Bros Ltd
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 12 of 1983
- Procedural Posture
- Civil Appeal / Application to Strike Out Appeal Before Hearing
- Outcome
- Appeal struck out for want of jurisdiction due to procedural defect.
- Legal Topics
- Appeal Striking Out, Jurisdiction, Decree Requirement
- 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
Mutuku and Associates
Appellant
Felix R M Kitonga & Bros Ltd
Respondent
Procedural Posture
Civil Appeal / Application to Strike Out Appeal Before Hearing
Legal Issues
- 1 Whether failure to include the formally drawn up decree or order in the record of appeal is a jurisdictional defect warranting striking out the appeal.
- 2 Whether the notice of hearing sufficiently covered the application to strike out the appeal.
Ratio Decidendi
The Court of Appeal held that the omission of the formally drawn up decree or order from the record of appeal is a fundamental jurisdictional defect. This defect cannot be cured and necessitates the striking out of the appeal. The court further found that the notice of hearing, in the circumstances where the appellant was already aware of the application to strike out, was sufficient to cover both the appeal and the application. As such, the respondent's application to strike out the appeal was allowed with costs.
Court Disposition
Appeal struck out for want of jurisdiction due to procedural defect.
Orders
- The respondent's application to strike out the appeal is allowed.
- The appeal is struck out.
Full Case Text
Judgment text and source record
21 paragraphs
IN THE COURT OF APPEAL
AT MALINDI
CIVIL APPEAL 12 OF 83
MUTUKU AND ASSOCIATES…………..………………………….APPELLANT
AND
FELIX R M KITONGA & BROS LTD…………………………………RESPONDENT
(From the ruling of the High Court of Kenya at Mombasa (Schofield, J) dated 16th December, 1982)
Civil Suit No 65 & 513 of 1978 (Consolidated) _______________
RULING OF THE COURT
HANCOX, J A It has been held, repeatedly, by this court that failure to include the formally drawn up decree or order embodying the decision of the court appealed form, is a matter going to jurisdiction and must result in the appeal being struck out – see in particular JASWANTRAI AGGARWAL & ORS v LEKHRAJ AGGARWAL, Civil Appeal 3 of 1981. In this case, the hearing notice for today has been served. On the last occasion when this appeal was called on, 25th July 1983, Mr Kitonga who then appeared for the Appellant on behalf of Messrs Mulwa, said, in terms, that the notice to strike out the Appeal had in fact been received by his office. We are therefore satisfied that Messrs J K Mulwa & Co were aware of this application to strike out.
We are informed by the clerk of the court, that when a notice of hearing is issued, it is not the registry’s practice to specify, in addition, that the application to strike out will be heard because, the appellant being already aware thereof, must know that the notice of hearing embraces not only the appeal, but the application to strike out which of its nature, will precede the hearing of the appeal on the day of the hearing. It is therefore selfevident that the notice covers both matters.
Accordingly, we allow the respondent’s application to strike-out the appeal, with costs to the respondent of the application.
Dated at Mombasa this 30th day of January, 1984.
A A KNELLER
JUDGE OF APPEAL
A R W HANCOX
JUDGE OF APPEAL
J O NYARANGI
AG JUDGE OF APPEAL
I certify that this is a true copy of the original
DEPUTY REGISTRAR