[1981] KECA 31 (KLR)
The Court of Appeal held that the appeal was fundamentally defective due to the appellant's failure to serve notice of appeal on the respondent, to include a decree in the record of appeal, and to provide the documentary evidence exhibited at trial. The appellant's advocate did not take timely steps to regularize...
Source-derived case information.
- Citation
- [1981] KECA 31 (KLR)
- Parties
- Appellant: Nduti; Respondent: Ng'ang'a
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 6 of 1980
- Procedural Posture
- Civil Appeal / Appeal Hearing
- Outcome
- Appeal struck out as incompetent with costs to the respondent.
- Legal Topics
- Appeal Record Requirements, Service of Notice of Appeal, Extension of Time, Striking Out Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nduti
Appellant
Ng'ang'a
Respondent
Procedural Posture
Civil Appeal / Appeal Hearing
Legal Issues
- 1 Whether the appeal is competent in the absence of service of notice of appeal on the respondent.
- 2 Whether the failure to include a decree and documentary evidence in the record of appeal renders the appeal fatally defective.
- 3 Whether the appellant should be granted an extension of time to remedy the defects in the record of appeal.
Ratio Decidendi
The Court of Appeal held that the appeal was fundamentally defective due to the appellant's failure to serve notice of appeal on the respondent, to include a decree in the record of appeal, and to provide the documentary evidence exhibited at trial. The appellant's advocate did not take timely steps to regularize these defects, and the informal application for extension of time was made only three days before the hearing. The court found that no sufficient reason had been shown under Rule 4 of the Rules of the Court of Appeal to justify the exercise of its discretion in favour of the appellant. Consequently, the court declined to grant any indulgence and ordered that the appeal be struck...
Court Disposition
Appeal struck out as incompetent with costs to the respondent.
Orders
- The appeal is struck out as incompetent.
- Costs awarded to the respondent, including costs of the notice of motion and the appellant's informal application.
Full Case Text
Judgment text and source record
27 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
( Coram:Law, Potter JJA & Simpson Ag JA )
CIVIL APPEAL NO. 6 OF 1980
BETWEEN
NDUTI......................................................................................APPELLANT
AND
NG'ANG'A...........................................................................RESPONDENT
JUDGMENT
The appeal set down for hearing today is hopelessly irregular. The respondent’s advocate, by notice of motion served on the appellant’s advocate on October 30, 1980 pointed out in his supporting affidavit.
a) that no notice of appeal had been served on him;
b) that no decree was included in the record of appeal, and we are told that no decree has been extracted to this day;
c) that the documentary evidence exhibited at the trial is not included in the record.
Notwithstanding this notice, the appellant’s advocate took no steps to regularize the position, until three days ago when he filed an affidavit intimating that he would today make an informal application for extensions of time to remedy the admitted fundamental defects in the record of appeal. We do not intend to grant any such indulgence. No sufficient reason has been shown under Rule 4 of the Rules of this Court to justify the exercise of our discretion in favour of the appellant, and to overlook the irregularities and delays which have attended the presentation of this appeal. We order that the appeal be struck out as incompetent, with costs, to include the costs of today’s proceedings, that is to say of the respondent’s notice of motion and of the appellant’s informal application.
Dated and Delivered at Nairobi this 16th day of February 1981.
E.J.E.LAW
.................................
JUDGE OF APPEAL
K.D.POTTER
...................................
JUDGE OF APPEAL
A.H.SIMPSON
.........................................
AG. JUDGE OF APPEAL
I certify that this is a true copy of the
original.
DEPUTY REGISTRAR