[2001] KECA 293 (KLR)
The Court found that the appellant failed to include the order appealed from in the record of appeal, a mandatory requirement under the rules. Additionally, the appellant did not obtain leave to appeal within the prescribed fourteen-day period, and the application for leave was not granted by the High Court. The...
Source-derived case information.
- Citation
- [2001] KECA 293 (KLR)
- Parties
- Appellant: Samuel Ndura Kanyara; Respondent: Mary Njambi
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 215 of 1999
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection
- Outcome
- appeal struck out as incompetent
- Legal Topics
- Appeal Procedure, Leave to Appeal, Record of Appeal Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Ndura Kanyara
Appellant
Mary Njambi
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the appeal is competent in the absence of the order appealed from in the record of appeal.
- 2 Whether leave to appeal was properly obtained within the prescribed time.
Ratio Decidendi
The Court found that the appellant failed to include the order appealed from in the record of appeal, a mandatory requirement under the rules. Additionally, the appellant did not obtain leave to appeal within the prescribed fourteen-day period, and the application for leave was not granted by the High Court. The combination of these procedural defects rendered the appeal incompetent. The Court therefore upheld the respondent's objection and struck out the appeal.
Court Disposition
appeal struck out as incompetent
Orders
- The appeal is struck out for being incompetent.
- No order as to costs.
Full Case Text
Judgment text and source record
9 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAKURU (CORAM: GICHERU, LAKHA & KEIWUA, JJ.A) CIVIL APPEAL NO. 215 OF 1999 BETWEEN
SAMUEL NDURA KANYARA ................................ APPELLANT AND MARY NJAMBI ......................................... RESPONDENT
(Appeal from an order of the High Court of Kenya at Eldoret (Mr. Justice Anganyanya) dated 3rd February, 1994 in H.C.C. APPEAL NO. 152 OF 1993) ***************** RULING OF THE COURT
Counsel for the respondent applies that the appeal herein be struck out because the order appealed from is not included in the record of appeal and that the appeal has been brought without leave in that the application for leave had been made outside the fourteen days allowed for that purpose. We agree that the order appealed from is not in the record of appeal. We also see that the appellant did not have leave of the superior court to appeal to this Court because his application for leave dated June 29, 1994 had not been granted by the learned Judge who instead enlarged time within which to appeal. We therefore uphold the objection by the respondent that the appeal be struck out for being incompetent and we strike out the same with no order as to costs.
Dated and delivered at Nakuru this 26th day of September, 2001.
J.E. GICHERU ............... JUDGE OF APPEAL
A.A. LAKHA ............... JUDGE OF APPEAL
M. Ole KEIWUA ............... JUDGE OF APPEAL
I certify that this is a true copy of the original. DEPUTY REGISTRAR