[1995] KECA 61 (KLR)
The Court held that the failure to include a certified copy of the decree in the record of appeal is a fatal defect under Rule 85(1) of the Court of Appeal Rules. Since the decree is not among the documents that may be subsequently filed in a supplementary record as per Rule 2A, the omission is incurable....
Source-derived case information.
- Citation
- [1995] KECA 61 (KLR)
- Parties
- Appellant: Osienyo Onyiko; Respondent: Justo Okuku; Respondent: Joshua Okuku; Respondent: Mohamed Wanga
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 89 of 1994
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection
- Outcome
- Appeal struck out as incompetent with costs to the respondents.
- Judges
- AB Shah
- Legal Topics
- Appeal Record Requirements, Striking Out Appeals, Court of Appeal Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Osienyo Onyiko
Appellant
Justo Okuku
Respondent
Joshua Okuku
Respondent
Mohamed Wanga
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the absence of a certified copy of the decree in the record of appeal renders the appeal incompetent.
- 2 Whether the defect can be cured by filing a supplementary record under the Court of Appeal Rules.
Ratio Decidendi
The Court held that the failure to include a certified copy of the decree in the record of appeal is a fatal defect under Rule 85(1) of the Court of Appeal Rules. Since the decree is not among the documents that may be subsequently filed in a supplementary record as per Rule 2A, the omission is incurable. Consequently, the appeal is incompetent and must be struck out with costs to the respondents.
Court Disposition
Appeal struck out as incompetent with costs to the respondents.
Orders
- The appeal is struck out with costs to the respondents.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL OF KENYA AT KISUMU
CIVIL APPEAL 89 OF 1994
OSIENYO ONYIKO…………….......................………………APPELLANT
AND
JUSTO OKUKU
JOSHUA OKUKU
MOHAMED WANGA………..........................………….…RESPONDENTS
(Appeal from the judgement and decree of the High Court of Kenya at Kakamega (Justice J.L.A. Osiemo) dated 24th September, 1991
IN
CIVIL CASE NO. 81 OF 1984)
*************************
RULING OF THE COURT
This appeal does not include in its record a certified copy of the Decree against which it is sought to appeal. This contravenes Rule 85 (1) of the Rules and renders the appeal incompetent. Since it is not a document that is expressly empowered to be included in a supplementary record if omitted as specified in Rule 2A of Rule 85, the defect is incurable.
Accordingly, it follows that the appeal must be and is hereby struck out with costs to the Respondents.
Dated and delivered at Kisumu this 21st day of March, 1995.
P.K. TUNOI
………………………
JUDGE OF APPEAL
A.B. SHAH
………………………..
JUDGE OF APPEAL
A.A. LAKHA
………………………..
JUDGE OF APPEAL