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Court of AppealStruck OutNot stated in the judgment· [1996] KECA 146 (KLR)

Gabriel Nyangate v Kineni Farmers Co-operative Society Limted & 1 other

Court of Appeal of Kenya
24 October 1996
RKR. O. KWACHPhilip Kiptoo TunoiP. K. TUNOIGPG. S. PALL
87 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 appellant failed to provide a certified copy of the order being appealed, proving paperwork compliance is essential.

What this practically means

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Executive summary

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This is a very short ruling of the Court of Appeal at Nairobi, delivered on 24 October 1996 by a bench of Kwach, Tunoi and Pall, JJ A, sitting as a full court of three. The Court disposed of the appeal on a threshold point of competency without reaching the merits. It recorded that no certified copy of the order appealed against had been placed before it, and held that the appeal was therefore incompetent for breach of rule 85(1)(h) of the Court of Appeal Rules. The appeal was struck out outright. The Court also made a nominal costs order, requiring the Appellant to pay the Respondent Shs.5,000/= as the costs of the appeal, payable within seven days. No authorities were cited and no separate opinions were written; the brief ruling appears to be the judgment of the whole court. The decision is significant for appellate practice as an application of the requirement that an appellant furnish a certified copy of the order appealed against, failing which the appeal is incompetent and liable to be struck out. Because the judgment as supplied consists only of the disposition, the case title, appeal number, the decision below and the parties' identities are not ascertainable from the text, and the underlying merits were never addressed.

Key legal issues

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

Holding

The appeal was incompetent for breach of rule 85(1)(h) and was struck out, with costs against the Appellant.

Reasoning

The Court of Appeal requires, as a condition of competency, that a certified copy of the order appealed against be placed before it. In this appeal no such certified copy was available. The Court did not engage with the merits at all; the defect was treated as fatal and the only appropriate course was to strike the appeal out and award the Respondent nominal costs of Shs.5,000/= payable within seven days.

p. 1

Legal principles established

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  • An appeal before the Court of Appeal is incompetent and liable to be struck out where no certified copy of the order appealed against is furnished in compliance with rule 85(1)(h) of the Court of Appeal Rules.

Court orders

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  1. 1.The appeal is struck out for breach of rule 85(1)(h)
  2. 2.The Appellant to pay the Respondent's costs of the appeal assessed at Shs.5,000/=, payable within 7 days
Jurisdiction invoked
Not stated in the judgment; the appeal was before the Court of Appeal under its appellate jurisdiction, but the specific constitutional or statutory provision is not identified

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, "Gabriel Nyangate v Kineni Farmers Co-operative Society Limted & 1 other", Case Analysis (1996). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1996/146/eng@1996-10-24

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