[2002] KEHC 810 (KLR)
The court found that the appeal was incompetent because it was not based on any identifiable or existing order or ruling dated 5th December 1997 from the Rent Restriction Tribunal. The record of appeal did not contain such an order, and the appellant failed to clarify or provide the necessary documentation as...
Source-derived case information.
- Citation
- [2002] KEHC 810 (KLR)
- Parties
- Appellant: Sharriffa Abdalla; Respondent: Mary Nyambura & Another; Respondent: Mr. Njoroge; Applicant: Mr. Mwakisha
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 87 of 1997
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed as incompetent
- Legal Topics
- Appeal Procedure, Competency of Appeal, Civil Appeals, Tribunal Decisions
- 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
Sharriffa Abdalla
Appellant
Mary Nyambura & Another
Respondent
Mr. Njoroge
Respondent
Mr. Mwakisha
Applicant
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appeal is competent in the absence of an identifiable order or ruling dated 5th December 1997 from the Rent Restriction Tribunal.
- 2 Whether the memorandum of appeal is valid without a certified copy of the decree or order appealed from.
Ratio Decidendi
The court found that the appeal was incompetent because it was not based on any identifiable or existing order or ruling dated 5th December 1997 from the Rent Restriction Tribunal. The record of appeal did not contain such an order, and the appellant failed to clarify or provide the necessary documentation as required by the Civil Procedure Rules. Without a certified copy of the decree or order appealed from, and in the absence of leave to file such document later, the appeal could not be sustained. The court therefore dismissed the appeal as incompetent and awarded costs to the respondent.
Court Disposition
appeal dismissed as incompetent
Orders
- Appeal is dismissed as incompetent.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL APPEAL NO. 87 OF 1997
SHARRIFFA ABDALLA …………………………………..APPELLANT
VERSUS
MARY NYAMBURA & ANOTHER …………………. RESPONDENTS
JUDGEMENT
This is an appeal against the decision of the Chairman Rent Restriction Tribunal at Mombasa which he made on 5th December 1997 in Rent Restrictions Case No. 225 of 1993.
This Appeal was argued very forcefully by Mrs. Ali learned counsel for the appellant based on the grounds of appeal dated 5th December 1997 in which the appellant prays that the ruling made by Honourable Chairman on 5th December 1997 be set aside.
At the hearing of the appeal Miss Osino Counsel for the Respondent raised what could only be a preliminary point that while the appeal is directed against the ruling of the tribunal dated 5th December 1997 there in fact is not such ruling dated 5th December 1997.
There in fact is no such ruling dated on that date. She said:-
“There is no such order of tribunal made on 5 th December 1997. There was no o rder in the record of appeal made on 5 th December 1997”.
Mrs. Ali responded to this saying:-
“The ruling was made on 12 th August 1996 on same day certificate was issued so to say that prior to 20th January 1997 there was no certificate is not true. Ther e was a ruling made on 12 th August 1996 and Certificate issued same date …………………”
The record of appeal filed herein has no order dated 5th December 1997 which is the order the appeal is based. Mrs. Ali’s response to Mrs. Osino’s objection does not clarify the matter under O.41 r/A of the Civil Procedure Rules appeals which should include such appeals from Tribunal’s decision is either against judgment decree or order. The memorandum of appeal ought to be accompanied by a copy of the certified decree or order appealed from and if not so filed to be filed within time given by court. Here no such leave was sought.
The grounds of appeal are all directed towards the decision/order/impugned. Where that decision is not exhibited or shown to exist the appeal cannot be competent.
From the foregoing it is my view that the decision appealed from not being shown as the one relied on to adopt any other decisions the one meant to be impugned would be injudicious and most reprehensible.
Appeal is therefore dismissed as incompetent.
Cost to the respondent.
Dated at Mombasa this 31st day May 2002.
A. I. HAYANGA
JUDGE
Read to Mr. Njoroge for Respondent.
Read to Mr. Mwakisha for Applicant.
A. I. HAYANGA
JUDGE 31/5/2002