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Court of AppealStruck OutCivil Appeal 154 of 1995· [1995] KECA 81 (KLR)

JAMES MWASHORI MWAKIO v KENYA COMMERCIAL BANK LTD [1995] KECA 81 (KLR)

Court of Appeal of Kenya
29 November 1995
258 words in judgment
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The bottom line

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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

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Executive summary

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This is a short ruling of the Court of Appeal at Nairobi delivered on 29 November 1995 by a bench of Gicheru, Tunoi and Shah, JJ.A, in an appeal by James Mwashori Mwakio against a ruling of the High Court (Pall, J) dated 26 July 1995 in H.C.C.C. No. 2815 of 1980, a suit against Kenya Commercial Bank Ltd. The court struck out the appeal without hearing substantive argument. Two grounds supported the striking out. First, the appeal had been filed without the leave of the superior court, which the court held was required for appeals against orders made or referred to under Order 21 rules 30 and 6(1)(2) of the Civil Procedure Rules. The appellant's claim that the learned judge had orally told him he could appeal was rejected because no such fact appeared on the record; the court emphasised that leave to appeal must be formally on record. This defect alone rendered the appeal incompetent. Second, the records before the court - the court's copy, counsel Mr. Le Pelly's copy and the appellant's copy - contained no certified copy of the order appealed against, not even in photostat form, and it was unexplained how the court record was said to include one. The court struck out the appeal and made no order as to costs. The ruling binds subordinate courts and the High Court on the requirement that leave to appeal be formally obtained and recorded where statutorily required.

Key legal issues

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01

Competency of an appeal filed without required leave

Holding

The appeal was incompetent for want of leave of the superior court, which is a jurisdictional prerequisite

Reasoning

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.

p. 1
02

Certified copy of the order appealed from in the record

Holding

The absence from the record of appeal of a certified copy of the order, even in photostat form, further undermined the appeal

Reasoning

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.

p. 1

Legal principles established

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  • 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

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  1. 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

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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, "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.