[1996] KECA 177 (KLR)
The Court found that the appeal was incompetent because the record did not contain a certified copy of the decree appealed against, as required by rule 85(1)(h) of the Court of Appeal Rules. The appellant's concession of the application and request to withdraw the appeal was rejected on the basis that an incompetent...
Source-derived case information.
- Citation
- [1996] KECA 177 (KLR)
- Parties
- Appellant: Republic; Respondent: The District Commissioner Machakos; Applicant: Isaac Matheka Mutua
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 121 of 1992
- Procedural Posture
- Civil Appeal / Application to Strike Out Appeal
- Outcome
- Appeal struck out as incompetent with costs to the applicant.
- Judges
- JE Gicheru
- Legal Topics
- Appeal Record Requirements, Striking Out Appeals, Court of Appeal 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
Republic
Appellant
The District Commissioner Machakos
Respondent
Isaac Matheka Mutua
Applicant
Procedural Posture
Civil Appeal / Application to Strike Out Appeal
Legal Issues
- 1 Whether the appeal is incompetent for lack of a certified copy of the decree appealed against in the record.
- 2 Whether the appellant should be allowed to withdraw the appeal after conceding the application to strike out.
Ratio Decidendi
The Court found that the appeal was incompetent because the record did not contain a certified copy of the decree appealed against, as required by rule 85(1)(h) of the Court of Appeal Rules. The appellant's concession of the application and request to withdraw the appeal was rejected on the basis that an incompetent appeal cannot be withdrawn, as there is nothing valid before the court to be withdrawn. The proper course was to strike out the appeal for non-compliance with the mandatory procedural requirements. Costs were awarded to the applicant, including the costs of the application.
Court Disposition
Appeal struck out as incompetent with costs to the applicant.
Orders
- The applicant's application is allowed.
- The appellant's appeal is struck out as incompetent.
Full Case Text
Judgment text and source record
22 paragraphs
IN THE COURT OF APPEAL AT NAIROBI (CORAM: GICHERU, OMOLO & LAKHA, JJ.A.) CIVIL APPEAL NO. 121 OF 1992
BETWEEN
REPUBLIC...........................................................................APPELLANT
AND
THE DISTRICT COMMISSIONER MACHAKOS...........RESPONDENT
(Appeal from the judgment of the High Court of Kenya at Nairobi (Bosire & Mwera, JJ.) dated 4th June, 1992
in H.C. MISC. CAUSE NO. 117 OF 1986) *******************
RULING OF THE COURT
In this application the applicant seeks to have the appellant's appeal struck out for being incompetent for the reason that the record of the said appeal does not contain a certified copy of the decree appealed against. Mr. Mokaya for the appellant concedes this application but asks that he be allowed to withdraw the appellant's appeal. It is patently obvious that the record of the appellant's appeal does not contain a certified copy of the decree appealed against. In the circumstances the said appeal is incompetent as it offends the provisions of rule 85(1)(h) of the Rules of this Court and there is therefore nothing to be withdrawn. In the result we allow the applicant's application and strike out the appellant's appeal with costs to the applicant Isaac Matheka Mutua together with the costs of this application.
Dated and delivered at Nairobi this 21st day of May, 1996.
J.E. GICHERU
............................
JUDGE OF APPEAL
R.S.C. OMOLO
...........................
JUDGE OF APPEAL
A.A. LAKHA
.........................
JUDGE OF APPEAL
I certify that this is a
true copy of the original.
DEPUTY REGISTRAR