Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealStruck OutCivil Appeal No. 119 of 1994· [1996] KECA 21 (KLR)

Jerome Mwathi Kaumbulu Professor J. K. Maitha v Sila Husyimi Ndolo

Court of Appeal
17 October 1996
ROR. S. C. OmoloPhilip Kiptoo TunoiP. K. TunoiGPG. S. Pall
0 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~1 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal struck out an appeal because the record lacked a certified copy of the order being appealed, showing strict compliance with filing rules is essential.

What this practically means

#

Executive summary

#
This was an appeal to the Court of Appeal at Nairobi by Jerome Mwathi Kaumbulu and Professor J. K. Maitha against a ruling of the High Court of Kenya at Machakos (Osiemo J) dated 7th June 1994 in H.C.C.C. No. 56 of 1994 (O.S), in which Sila Husyimi Ndolo was the respondent. The coram comprised Omolo, Tunoi and Pall JJA, who delivered a single joint judgment of the court on 17th October 1996. The court did not reach the merits of the dispute. Instead, it found a fatal procedural defect: the record of appeal lodged on 18th July 1994 did not incorporate a certified copy of the order sought to be appealed against, contrary to rule 85(i)(h) of the Court of Appeal Rules. That non-compliance rendered the appeal defective and incompetent, and the court struck it out. The court made no order as to costs, meaning each party bears its own costs. The judgment binds lower courts and litigants to the proposition that a certified copy of the order appealed against is a mandatory component of the record of appeal, and that an appeal filed without it is incompetent and liable to be struck out. No authorities were cited and no separate opinions were rendered; the bench was unanimous.

Key legal issues

#
01

Competency of an appeal lacking a certified copy of the order appealed against

Holding

The appeal was struck out because the record did not include a certified copy of the order appealed against, as mandated by rule 85(i)(h) of the Court of Appeal Rules.

Reasoning

Rule 85(i)(h) of the Court of Appeal Rules requires that the record of appeal incorporate a certified copy of the order sought to be appealed against. The record lodged on 18th July 1994 did not contain such a certified copy. Non-compliance with this mandatory requirement rendered the appeal defective and incompetent, leaving the court no option but to strike it out, with no order as to costs.

p. 1

Legal principles established

#
  • An appeal to the Court of Appeal must incorporate in the record a certified copy of the order sought to be appealed against as required by rule 85(i)(h); failure to do so renders the appeal defective and incompetent and liable to be struck out.

Court orders

#
  1. 1.The appeal is struck out as defective and incompetent
  2. 2.No order as to costs
On appeal from
High Court of Kenya
H.C.C.C. No. 56 of 1994 (O.S)
Jurisdiction invoked
Appeal from the ruling of the High Court of Kenya sitting at Machakos, under the Court of Appeal Rules (rule 85(i)(h))

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Jerome Mwathi Kaumbulu Professor J. K. Maitha v Sila Husyimi Ndolo", Case Analysis (1996). Civil Appeal No. 119 of 1994. Source:

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