[1997] KECA 289 (KLR)
The Court found that the appeal was incompetent for two reasons: first, the record contained a documentary exhibit in a language other than English without the required translation, in violation of rule 85(1)(f) of the Court of Appeal Rules. This rule is mandatory and the defect is incurable. Second, the appeal was...
Source-derived case information.
- Citation
- [1997] KECA 289 (KLR)
- Parties
- Appellant: Njoroge Makumi; Respondent: David Mwangi Nduati
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 7 of 1995
- Procedural Posture
- Civil Appeal / Ruling on Application to Strike Out Appeal
- Outcome
- Appeal struck out with costs to the respondent.
- Judges
- AM Akiwumi
- Legal Topics
- Appeal Striking Out, Procedural Irregularities, Translation Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Njoroge Makumi
Appellant
David Mwangi Nduati
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Strike Out Appeal
Legal Issues
- 1 Whether the appeal is competent in light of non-compliance with mandatory procedural rules.
- 2 Whether the absence of an English translation for a documentary exhibit renders the appeal incurable.
- 3 Whether the appeal was filed out of time and the effect thereof.
Ratio Decidendi
The Court found that the appeal was incompetent for two reasons: first, the record contained a documentary exhibit in a language other than English without the required translation, in violation of rule 85(1)(f) of the Court of Appeal Rules. This rule is mandatory and the defect is incurable. Second, the appeal was filed out of time. The respondent's application under rule 80 to strike out the appeal was therefore allowed on these grounds. The Court emphasized that compliance with procedural rules is essential for the competence of an appeal, and failure to do so, especially where the rules are mandatory, leaves the Court with no discretion but to strike out the appeal.
Court Disposition
Appeal struck out with costs to the respondent.
Orders
- The appeal is struck out with costs to the respondent.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT NAIROBI (CORAM: AKIWUMI, LAKHA JJ.A. & BOSIRE AG. J.A) CIVIL APPEAL NO. 7 OF 1995
BETWEEN
NJOROGE MAKUMI........................A.N.D. ..............APPELLANT DAVID MWANGI NDUATI....................................RESPONDENT
(An appeal from the judgment and decree of the High Court of Kenya (Hon. Mr. Justice Mango) dated 4th September, 1991
in H.C.C.C. NO. 2710 OF 1989) *************
RULING OF THE COURT
Notwithstanding that Mr. Nganga, Counsel who is holding brief for counsel for the appellant, has applied for the adjournment of this appeal, we do not consider that there is a competent appeal before us. Firstly, at page 40 of the record there appears a documentary exhibit in a language other than English.
There is no translation thereof as required by rule 85 (1)(f) of the Rules of this Court. The provision being mandatory the defect is incurable. Moreover, the appeal was filed out of time. In the circumstances the appeal must be struck out with costs, the respondent having made an appropriate application under rule 80 of the Rules of this Court for the striking out of this appeal, which application we allow on the second of the two grounds we set out earlier.
Order accordingly.
Dated at Nairobi this 16th day of April, 1997.
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