[1996] KECA 19 (KLR)
The Court found that the appeal was incompetent because it combined two decisions: one appealable as of right and another requiring leave of appeal, which had not been obtained. The record of appeal was inseparable as regards the two decisions, making it confusing and procedurally defective. As a result, the Court...
Source-derived case information.
- Citation
- [1996] KECA 19 (KLR)
- Parties
- Appellant: Warui Muriithi; Respondent: Jephesa Kagumba & 7 Others
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 28 of 1996
- Procedural Posture
- Civil Appeal / Order on Competence of Appeal
- Outcome
- Appeal struck out as incompetent.
- Judges
- AM Akiwumi, AB Shah
- Legal Topics
- Right of Appeal, Leave to Appeal, Competence of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Warui Muriithi
Appellant
Jephesa Kagumba & 7 Others
Respondent
Procedural Posture
Civil Appeal / Order on Competence of Appeal
Legal Issues
- 1 Whether the appeal is competent where it combines a decision appealable as of right and another requiring leave without such leave being obtained.
- 2 Whether the record of appeal is valid when it is inseparable as regards two different decisions.
Ratio Decidendi
The Court found that the appeal was incompetent because it combined two decisions: one appealable as of right and another requiring leave of appeal, which had not been obtained. The record of appeal was inseparable as regards the two decisions, making it confusing and procedurally defective. As a result, the Court had no alternative but to strike out the entire appeal. The appellant's counsel conceded the incompetence of the appeal, and the Court exercised its discretion to strike out the appeal with no order as to costs.
Court Disposition
Appeal struck out as incompetent.
Orders
- The appeal is hereby struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
24 paragraphs
IN THE COURT OF APPEAL
AT NYERI
CORAM: AKIWUMI, SHAH & LAKHA, JJ.A.
CIVIL APPEAL NO 28 OF 1996
BETWEEN
WARUI MURIITHI………………………….……..APPELLANT
AND
JEPHESA KAGUMBA & 7 OTHERS……….RESPONDENTS
(Appeal from a ruling of the High Court of Kenya at Nyeri (Justice Ang’awa) dated 22nd March, 1994
IN
H. C. C. C. NO. 279 OF 1993)
************************
ORDER OF THE COURT
The present appeal is in respect of two decisions, one of which is appealable as of right and the other not of right. This makes the record of appeal which is inseparable as regards the two decisions, clearly incompetent not to say confusing. We have no alternative but to strike out this inseparable appeal which is made incompetent as Counsel for the appellant agrees, because of one of the decisions appealed against requires leave of appeal which has not been obtained. This appeal is hereby struck out with no order as to costs.
Dated and delivered at Nyeri this 17th day of October, 1996.
A. M. AKIWUMI
………………….
JUDGE OF APPEAL
A.B. SHAH
…………………..
JUDGE OF APPEAL
A. A. LAKHA
……………………
JUDGE OF APPEAL