[2012] KEHC 4115 (KLR)
The court held that the filing of a certified copy of the decree is a mandatory procedural requirement for an appeal to be properly before the court, as it is the document that confers jurisdiction on the appellate court. However, considering the age of the appeal and in the interest of justice, the court exercised...
Source-derived case information.
- Citation
- [2012] KEHC 4115 (KLR)
- Parties
- Appellant: Stephen Macharia Munyiri; Respondent: Salome Wairimu Munyiri
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 120 of 2006
- Procedural Posture
- Civil Appeal / Interlocutory Ruling on Completeness of Record of Appeal
- Outcome
- Appellant granted 45 days to file and serve supplementary record including decree; appeal not struck out.
- Legal Topics
- Appeal Record Requirements, Filing of Decree, Supplementary Record, Procedural Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Macharia Munyiri
Appellant
Salome Wairimu Munyiri
Respondent
Procedural Posture
Civil Appeal / Interlocutory Ruling on Completeness of Record of Appeal
Legal Issues
- 1 Whether the absence of a certified copy of the decree in the record of appeal is fatal to the appeal.
- 2 Whether the appellant should be granted additional time to file a supplementary record including the decree.
Ratio Decidendi
The court held that the filing of a certified copy of the decree is a mandatory procedural requirement for an appeal to be properly before the court, as it is the document that confers jurisdiction on the appellate court. However, considering the age of the appeal and in the interest of justice, the court exercised its discretion not to strike out the appeal solely on this procedural ground. Instead, the appellant was granted 45 days to prepare, file, and serve a supplementary record of appeal including the certified copy of the decree. The parties were directed to thereafter move the court for a judgment date.
Court Disposition
Appellant granted 45 days to file and serve supplementary record including decree; appeal not struck out.
Orders
- The appellant is given 45 days within which to prepare a supplementary record, file and serve it.
- The parties to thereafter move the Court for purposes of taking a date for Judgment.
Full Case Text
Judgment text and source record
29 paragraphs
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REPUBLIC OF KENYA
IN THE HIGH COURT
AT EMBU
Civil Appeal 120 of 2006
STEPHEN MACHARIA MUNYIRI………………………. ……………APPELLANT
VERSUS
SALOME WAIRIMU MUNYIRI………………………..……..……. RESPONDENT
(An Appeal from the Judgment of MR. ITHUKU – SRM sitting at KERUGOYA in Civil Suit No. 236 OF 2004 delivered on 23/2/2005).
R U L I N G
The Appellant is appealing against the Judgment of Mr. Ithuku – SRM Kerugoya in Succession Cause No.236 of 2004 where both the Appellant and Respondent were petitioners. Besides the original Record of Appeal the Appellant applied for was granted leave to file a supplementary record of appeal. The said supplementary record is not before me.
The Counsels filed written submissions which I have well considered. Mr. Munene Muriuki has raised an issue of failure to include a decree in the Record of Appeal. I think it would be wise to deal with that issue first.
As I have indicated there is no supplementary record filed to even include the leave granted for the Appeal to be filed out of time. Secondly there is no ‘decree’ of the lower court filed herein. The Appellant had all the time to do so but he did not.
Order 42 rule 2 Civil Procedure Rules provides;
“Where no certified copy of the decree or order appealed against is filed with the Memorandum of Appeal, the Appellant shall file such certified copy as soon as possible in any event within such time as the Court may order and the Court need not consider whether to reject the appeal summarily under section 79B of the Act until such certified copy is filed.”
In the case of JOSEPH NDERITU GITHINJI –VS- ESTHER WANJIRU GITHINJI C.A. NO.47 OF 1998 [1998] LLR 700 it was held;
“In the Court of Appeal no appeal can be lodged without a decree, as is also the case in the High Court as the decree or order is the primary document giving the Court jurisdiction to hear appeals”
From the above holding and the provisions of Order 42 rule 2(1) Civil Procedure rules it is clear that a decree must be filed in the record of appeal. However this being an old appeal I would not wish to strike it out on that ground alone. The Appellant is given 45 days within which to prepare a supplementary record, file and serve it. The parties to thereafter move the Court for purposes of taking a date for Judgment.
DATED, SIGNED AND DELIVERED AT EMBU THIS 6TH DAY OF JUNE 2012.
H.I. ONG’UDI
JUDGE
In the presence of;
Mr. Muraguri for Magee for Appellants
Njue – C/c