JAMES MWASHORI MWAKIO v KENYA COMMERCIAL BANK LTD [1995] KECA 81 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal against KCB because the required leave to appeal was never formally recorded, and the record lacked a certified copy of the order.
What this practically means
#Executive summary
#Key legal issues
#Competency of an appeal filed without required leave
The appeal was incompetent for want of leave of the superior court, which is a jurisdictional prerequisite
The court held that where an appeal lies against orders made or referred to under Order 21 rule 30 and 6(1)(2), leave to appeal is required. The appellant's assertion that the judge orally indicated he could appeal was unsupported by the record. Leave to appeal must be formally on record; its absence alone renders the appeal incompetent.
Certified copy of the order appealed from in the record
The absence from the record of appeal of a certified copy of the order, even in photostat form, further undermined the appeal
The court noted that its own copy, counsel's copy and the appellant's copy of the record of appeal all lacked a certified copy of the order, and it was unclear how the court record was said to contain one. This was an additional, independent defect in the appeal.
Legal principles established
#- An appeal against orders made or referred to under Order 21 rules 30 and 6(1)(2) requires leave of the superior court, and leave must formally appear on the record
Court orders
#- 1.The appeal be and is hereby struck out with no order as to costs
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 2815 of 1980
- Jurisdiction invoked
- Appellate jurisdiction over appeals from the High Court requiring leave under Order 21 rules 30 and 6(1)(2) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "JAMES MWASHORI MWAKIO v KENYA COMMERCIAL BANK LTD [1995] KECA 81 (KLR)", Case Analysis (1995). Civil Appeal 154 of 1995. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1995/81/eng@1995-11-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.