[2006] KECA 97 (KLR)
The Court of Appeal held that the omission of the Amended Notice of Motion, a primary document upon which the High Court's ruling was based, from the record of appeal was fatal to the appeal. Rule 85(1) of the Court of Appeal Rules mandates that such primary documents must be included in the record. Without the...
Source-derived case information.
- Citation
- [2006] KECA 97 (KLR)
- Parties
- Appellant: Rael Muyaka; Appellant: Helina Nasimiyu; Appellant: Wasike Murambochi; Appellant: David Sicharani; Appellant: Dickson Sabuni; Appellant: Florence Namalwa; Appellant: Thomas Shikuku; Respondent: Waitaluk Land Disputes Tribunal comprising of Mboto Kidai, Harun Kipsugut, Ezekiel Kessio
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 354 of 2002
- Procedural Posture
- Civil Appeal / Appeal From Ruling of the High Court Dismissing Amended Notice of Motion
- Outcome
- appeal struck out
- Judges
- CA Otieno
- Legal Topics
- Record of Appeal Requirements, Striking Out Appeal, Primary Documents Omission, Land Disputes Tribunal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rael Muyaka
Appellant
Helina Nasimiyu
Appellant
Wasike Murambochi
Appellant
David Sicharani
Appellant
Dickson Sabuni
Appellant
Florence Namalwa
Appellant
Thomas Shikuku
Appellant
Waitaluk Land Disputes Tribunal comprising of Mboto Kidai, Harun Kipsugut, Ezekiel Kessio
Respondent
Procedural Posture
Civil Appeal / Appeal From Ruling of the High Court Dismissing Amended Notice of Motion
Legal Issues
- 1 Whether the omission of the Amended Notice of Motion from the record of appeal is fatal to the appeal.
- 2 Whether the Court of Appeal can deliver judgment where a primary document is missing from the record of appeal.
Ratio Decidendi
The Court of Appeal held that the omission of the Amended Notice of Motion, a primary document upon which the High Court's ruling was based, from the record of appeal was fatal to the appeal. Rule 85(1) of the Court of Appeal Rules mandates that such primary documents must be included in the record. Without the Amended Notice of Motion, there was no valid appeal before the Court upon which a judgment could be delivered. Consequently, the appeal was struck out for want of a proper record, regardless of the merits of the arguments presented by the parties.
Court Disposition
appeal struck out
Orders
- The appeal is struck out.
- No orders as to costs.
Full Case Text
Judgment text and source record
35 paragraphs
IN THE COURT OF APPEAL OF KENYA
AT ELDORET
CIVIL APPEAL 354 OF 2002
RAEL MUYAKA
HELINA NASIMIYU
WASIKE MURAMBOCHI
DAVID SICHARANI
DICKSON SABUNI
FLORENCE NAMALWA
THOMAS SHIKUKU ………………….........................................………..…APPELLANTS
VERSUS
WAITALUK LAND DISPUTES TRIBUNAL COMPRISONG OF
MBOTO KIDAI
HARUN KIPSUGUT
EZEKIEL KESSIO …………….......................................…………………RESPONDENTS
(Appeal from the ruling of the High Court of Kenya at Kitale (Etyang J) dated 18th December, 2001
in
MISC. APPL. NO. 102 OF 2001
**************************
ORDER OF THE COURT
This is an appeal from the Ruling of the superior court (Etyang J) in Kitale Miscellaneous Civil Application No. 102 of 2001 delivered at Kitale on 18th December, 2001. In that ruling, the superior court dismissed the Appellants’ Amended Notice of Motion filed on 3rd October 2001. The parties appeared before us on 20th September 2006 and argued the appeal at length. We then reserved our judgment on the same and directed that it be delivered today 13th October 2006.
In the process of preparing the judgment, we perused carefully the record of appeal before us, and have noted to our dismay that the Amended Notice of Motion which was considered by the superior court and upon which the Ruling was based was not included in the record of appeal before us as is required by Rule 85 (1) of the Court of Appeal Rules. The amended Notice of Motion is a primary document and had to be included as part of the record of appeal. In the circumstances, we cannot deliver judgment in this matter as in law there is no valid appeal before us upon which a judgment can be given. Its omission is fatal to the entire appeal which regrettably must be struck out.
This appeal stands struck out. We make no orders as to the costs. These are the orders of the Court.
Dated and delivered at Eldoret this 13th day of October, 2006.
R. S. C. OMOLO
……………………………
JUDGE OF APPEAL
J. W. ONYANGO OTIENO
……………………………
JUDGE OF APPEAL
W. S. DEVERELL
……………………………
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR