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Court of AppealStruck OutCivil Appeal No. 182 of 1994· [1996] KECA 63 (KLR)

Machakos District Co-operative Union Limited v Philip Nzuki Kiilu

Court of Appeal
9 December 1996
JGJ. E. GicheruPhilip Kiptoo TunoiP. K. TunoiGPG. S. Pall
203 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an appeal because the record lacked a certified copy of the decree, showing procedural compliance is non-negotiable.

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 9th December 1996 by Gicheru, Tunoi and Pall, JJ A, striking out the appellant's appeal in Civil Appeal No. 182 of 1994. The appeal lay from a judgment of the High Court of Kenya at Machakos (Osiemo, J) dated 20th September 1994 in H.C.C.C. No. 5 of 1994. By a Notice of Motion dated 18th November 1996, the respondent sought to strike out the appeal as incompetent because the record did not contain a certified copy of the decree appealed against, as required by rule 85(1)(h) of the Court of Appeal Rules. Counsel for the appellant conceded the motion, leaving only the question of costs to the Court. The Court ordered the appeal struck out with costs to the respondent. The ruling contains no separate opinions, no dissent, no cited authorities, and no discussion of the merits of the underlying dispute; the decision below was neither affirmed nor reversed, as the appeal never proceeded to hearing. Its binding significance lies in confirming that an appeal record lacking a certified copy of the decree is incompetent and may be struck out on motion.

Key legal issues

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Competency of an appeal for non-compliance with rule 85(1)(h) of the Court of Appeal Rules

Holding

The appeal was struck out because the record lacked a certified copy of the decree appealed against, as required by rule 85(1)(h); counsel for the appellant conceded the motion.

Reasoning

The respondent moved by Notice of Motion dated 18th November 1996 to strike out the appeal as incompetent on the ground that the record omitted the certified copy of the decree required by rule 85(1)(h). Counsel for the appellant conceded the motion, leaving costs to the Court. The Court struck out the appeal and awarded costs to the respondent.

p. 1

Legal principles established

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  • An appeal whose record does not contain a certified copy of the decree appealed against, as required by rule 85(1)(h) of the Court of Appeal Rules, is incompetent and liable to be struck out.

Court orders

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  1. 1.The appellant's appeal is struck out
  2. 2.Costs of the motion awarded to the respondent
On appeal from
High Court of Kenya at Machakos
H.C.C.C. No. 5 of 1994
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal under the Constitution and the Court of Appeal Rules; the motion was brought under rule 85(1)(h) of the Court of Appeal 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, "Machakos District Co-operative Union Limited v Philip Nzuki Kiilu", Case Analysis (1996). Civil Appeal No. 182 of 1994. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1996/63/eng@1996-12-09

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