[1999] KECA 109 (KLR)
The appeal was incompetent because the record of appeal did not contain a certified copy of the decree as required by rule 85(1)(h) of the Court of Appeal Rules. An incompetent appeal cannot be withdrawn; it must be struck out. Furthermore, the appellants failed to serve the respondents with the appeal, thereby...
Source-derived case information.
- Citation
- [1999] KECA 109 (KLR)
- Parties
- Appellant: Paul Muturi Mundui; Appellant: Ruchu Gaitho; Respondent: Wanjira Kienyere Gichangi; Respondent: Joseph Gichangi Kienyere; Respondent: Kenneth Kanyira Kienyere; Respondent: Lydia Wanjiku Kienyere; Respondent: Anna Wanjiku Kienyere; Respondent: Joyce Wangare Kienyere; Respondent: Josephat Gathua Kienyere; Respondent: Paul Gitahi Kienyere
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 29 of 1998
- Procedural Posture
- Civil Appeal / Application to Withdraw Appeal; Order Striking Out Appeal
- Outcome
- appeal struck out as incompetent with costs to respondents
- Judges
- JE Gicheru, RO Kwach, AB Shah
- Legal Topics
- Appeal Striking Out, Record of Appeal Requirements, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Muturi Mundui
Appellant
Ruchu Gaitho
Appellant
Wanjira Kienyere Gichangi
Respondent
Joseph Gichangi Kienyere
Respondent
Kenneth Kanyira Kienyere
Respondent
Lydia Wanjiku Kienyere
Respondent
Anna Wanjiku Kienyere
Respondent
Joyce Wangare Kienyere
Respondent
Josephat Gathua Kienyere
Respondent
Paul Gitahi Kienyere
Respondent
Procedural Posture
Civil Appeal / Application to Withdraw Appeal; Order Striking Out Appeal
Legal Issues
- 1 Whether the appeal is competent in the absence of a certified copy of the decree in the record of appeal.
- 2 Whether the appeal can be withdrawn when it is incompetent.
- 3 Whether failure to serve the respondents affects the proceedings.
Ratio Decidendi
The appeal was incompetent because the record of appeal did not contain a certified copy of the decree as required by rule 85(1)(h) of the Court of Appeal Rules. An incompetent appeal cannot be withdrawn; it must be struck out. Furthermore, the appellants failed to serve the respondents with the appeal, thereby denying them the opportunity to file an application to strike out the appeal under rule 80. In these circumstances, the Court ordered that the appeal be struck out with costs to the respondents.
Court Disposition
appeal struck out as incompetent with costs to respondents
Orders
- The appeal is struck out with costs to the respondents.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAKURU (CORAM: GICHERU, KWACH & SHAH, JJ.A.) CIVIL APPEAL NO. 29 OF 1998 BETWEEN PAUL MUTURI MUNDUI) RUCHU GAITHO ) ............................ APPELLANTS AND WANJIRA KIENYERE GICHANGI JOSEPH GICHANGI KIENYERE KENNETH KANYIRA KIENYERE LYDIA WANJIKU KIENYERE ANNA WANJIKU KIENYERE JOYCE WANGARE KIENYERE JOSEPHAT GATHUA KIENYERE PAUL GITAHI KIENYERE ........................... RESPONDENTS
(Appeal from the judgment and decree of the High Court of Kenya at Nakuru (Tunoi, J.A.) delivered on the 6th day of July, 1995
in
H.C.C.C. NO. 5 OF 1988) ******************* ORDER OF THE COURT
Mr. Konosi has applied to withdraw this appeal on the ground that the record of appeal is defective as it does not contain a certified copy of the decree as required by rule 85 (1) (h) of the Rules of this Court. This renders the appeal incompetent and incapable of withdrawal.
Although the appeal was lodged more than a year ago, no sevice has been effected on the respondents with the result that they were denied an opportunity to file any application under rule 80 to strike out the appeal. In the circumstances, we order the appeal struck out with costs to the respondents.
Made at Nakuru this 24th day of February, 1999.
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