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Court of AppealStruck OutCivil Appeal No. 101 of 1994

COAST BUS COMPANY vsGIDEON NDEKE MUNYAO (SUING AS NEXT OF KIN TO JONAH NDEKE MUNYAO AND NZEMBI MUNYAO [1986] KECA 53 (KLR)

Court of Appeal
5 November 1986
RKR. O. KwachPhilip Kiptoo TunoiP. K. TunoiALA. A. Lakha
192 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out Coast Bus Company's entire appeal because its decree was wrongly dated, proving paperwork errors can be fatal.

What this practically means

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Executive summary

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This is a short interlocutory-style decision of the Court of Appeal at Nairobi (Kwach, Tunoi and Lakha, JJ.A.) in Civil Appeal No. 101 of 1994, an appeal by Coast Bus Company against a judgment of the High Court at Machakos (Osiemo, J.) dated 17th March 1993 in H.C.C.C. No. 96 of 1993, in which Gideon Ndeke Munyao sued as next of kin to Jonah Ndeke Munyao and Nzembi Munyao. The court did not reach the substantive merits of the appeal. It found that the decree incorporated in the record of appeal, lodged on 28th June 1994, was wrongly dated and therefore contravened Order 20 rule 7 of the Civil Procedure Rules. That non-compliance rendered the appeal defective, and the court struck out the appeal. As consequential orders, the stay granted by the superior court was vacated and the money deposited with Prudential Finance Co. Ltd. was ordered released to the respondent. The court made no order as to costs. This is a single order of the whole court; the decision below was not disturbed on the merits, the appeal simply failing for procedural defect. Note: the judgment bears an internal date inconsistency, being dated 5th November 1986 despite the record of appeal having been lodged in 1994 and the appeal arising from a 1993 judgment.

Key legal issues

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01

Whether a defective decree in the record of appeal warrants striking out the appeal

Holding

Yes. The decree incorporated in the record was wrongly dated, contravening Order 20 rule 7 of the Civil Procedure Rules; the appeal was thereby rendered defective and was struck out, with consequential vacation of the stay and release of the deposited funds to the respondent.

Reasoning

The court treated the wrongly dated decree as a fatal non-compliance with the mandatory procedural requirement of Order 20 rule 7 of the Civil Procedure Rules. The defect in the very document incorporating the record of appeal rendered the appeal defective, leaving the court to strike it out and to unwind the consequential stay order and deposit held with Prudential Finance Co. Ltd. Each consequence flowed directly from the procedural default.

p. 2

Legal principles established

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  • A record of appeal containing a decree that is wrongly dated and thus contravenes Order 20 rule 7 of the Civil Procedure Rules is defective and liable to be struck out.

Court orders

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  1. 1.The appeal is struck out as defective
  2. 2.The order of stay granted by the superior court is vacated
  3. 3.The money deposited with Prudential Finance Co. Ltd. is ordered released to the respondent
  4. 4.No order as to costs
On appeal from
High Court of Kenya at Machakos
H.C.C.C. No. 96 of 1993
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over a decree of the High Court (the judgment does not state the enabling provision)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "COAST BUS COMPANY vsGIDEON NDEKE MUNYAO (SUING AS NEXT OF KIN TO JONAH NDEKE MUNYAO AND NZEMBI MUNYAO [1986] KECA 53 (KLR)", Case Analysis (1986). Civil Appeal No. 101 of 1994. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/53/eng@1986-05-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.