[1995] KECA 84 (KLR)
The Court held that the Notice of Appeal, being unsigned by or on behalf of the appellant, was in breach of rule 74(6) of the Court of Appeal Rules. This procedural defect was not a mere technicality but went to the root of the appeal's competence. As a result, the preliminary objection was upheld and the appeal was...
Source-derived case information.
- Citation
- [1995] KECA 84 (KLR)
- Parties
- Appellant: Ndurumuru Water Project; Appellant: John Kithure; Appellant: Christopher Wahome; Appellant: Ayub Koronya; Respondent: Hezekiah Nguru Kimara
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 135 of 1995
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection
- Outcome
- Appeal struck out as incompetent.
- Legal Topics
- Notice of Appeal, Court of Appeal Rules, Procedural Incompetence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ndurumuru Water Project
Appellant
John Kithure
Appellant
Christopher Wahome
Appellant
Ayub Koronya
Appellant
Hezekiah Nguru Kimara
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the failure to sign the Notice of Appeal as required by rule 74(6) of the Court of Appeal Rules renders the appeal incompetent.
Ratio Decidendi
The Court held that the Notice of Appeal, being unsigned by or on behalf of the appellant, was in breach of rule 74(6) of the Court of Appeal Rules. This procedural defect was not a mere technicality but went to the root of the appeal's competence. As a result, the preliminary objection was upheld and the appeal was struck out for being incompetent. The Court exercised its discretion not to award costs.
Court Disposition
Appeal struck out as incompetent.
Orders
- The appeal is struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT NYERI
Civil Appeal 135 of 1995
NDURUMURU WATER PROJECT
JOHN KITHURE
CHRISTOPHER WAHOME
AYUB KORONYA...............................….....…...........APPELLANTS
AND
HEZEKIAH NGURU KIMARA.......................……..…........RESPONDENT
(Appeal from the judgment and decree of the High Court of Kenya at Meru (Mr. Justice Oguk) dated 26th November, 1992,
IN
H.C.C.C. NO. 363 OF 1990)
***********************
RULING OF THE COURT
The Notice of Appeal at page 82 of the record of appeal has not been signed by or on behalf of the appellant as required by rule 74 (6) of the Court of Appeal Rules. This defect renders the appeal incompetent. In the result, we uphold the preliminary objection raised by Mr. Waweru on behalf of the respondents. We order the appeal to be struck out with no order as to costs.
Dated and delivered at Nyeri this 27th day of October, 1995.
J.E. GICHERU
…………………
JUDGE OF APPEAL
R.O. KWACH
……………………..
JUDGE OF APPEAL
A.B. SHAH
…………………………
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR