[1997] KECA 139 (KLR)
The appeal was struck out as incurably defective because the appellants failed to include a certified copy of the decree in the record of appeal, which is a mandatory requirement under rule 85(1)(h) of the Court of Appeal Rules. The omission rendered the appeal incompetent, and the court had no discretion to cure...
Source-derived case information.
- Citation
- [1997] KECA 139 (KLR)
- Parties
- Appellant: Phillip Wamacho Chemiati; Appellant: Wafula Chemiati; Appellant: Paul Wepukhulu; Respondent: Charles Nakitare
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 186 of 1991
- Procedural Posture
- Civil Appeal / Order Striking Out Appeal
- Outcome
- appeal struck out as incompetent
- Legal Topics
- Appeal Record Requirements, Striking Out Appeal, Non Compliance With Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Phillip Wamacho Chemiati
Appellant
Wafula Chemiati
Appellant
Paul Wepukhulu
Appellant
Charles Nakitare
Respondent
Procedural Posture
Civil Appeal / Order Striking Out Appeal
Legal Issues
- 1 Whether the appeal is competent in the absence of a certified copy of the decree as required by rule 85(1)(h) of the Court of Appeal Rules.
Ratio Decidendi
The appeal was struck out as incurably defective because the appellants failed to include a certified copy of the decree in the record of appeal, which is a mandatory requirement under rule 85(1)(h) of the Court of Appeal Rules. The omission rendered the appeal incompetent, and the court had no discretion to cure the defect. The absence of substitution for the deceased respondent's legal representatives was also noted, but the primary basis for striking out was non-compliance with the procedural rule.
Court Disposition
appeal struck out as incompetent
Orders
- The appeal is struck out for want of a certified copy of the decree in the record of appeal.
- No order as to costs.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAKURU
(CORAM: LAKHA, PALL JJ.A & BOSIRE AG. JA)
CIVIL APPEAL/APPLICATION NO.186 OF 1991
PHILLIP WAMACHO CHEMIATI
WAFULA CHEMIATI
PAUL WEPUKHULU .................................... APPELLANT
AND
CHARLES NAKITARE .................................. RESPONDENT
(Appeal from judgment of the High Court of Kenya at Eldoret (D.K.S. AGANYANYA) dated 10th September, 1990 in H.C.C.C. NO. 80 OF 1977 **************** ORDER OF THE COURT
The record of appeal does not include a certified copy of decree, as is mandatorily required by rule 85(1)(h) of the Rules of this court. This appeal is therefore incurably defective. It is therefore incompetent and is ordered struck out but with no order as to costs, as the legal representatives of the deceased respondent had not been substituted.
Dated and delivered at Nakuru this 20th day of February, 1997. A.A. LAKHA...............JUDGE OF APPEALG.S. PALL...............JUDGE OF APPEALS.E.O. BOSIRE................AG. JUDGE OF APPEAL I certify that this is a true copy of the original. DEPUTY REGISTRAR