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Court of AppealStruck OutCivil Appeal No. 110 of 1992· [1996] KECA 181 (KLR)

Joseph Mwaniki Murimi & another v Mwangi Ndeere & another [1996] KECA 181 (KLR)

Court of Appeal
23 April 1996
JGJ. E. GicheruROR. S. C. OmoloASA. B. Shah
191 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 order appealed against was not certified and the law bars third appeals.

What this practically means

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Executive summary

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This short ruling of the Court of Appeal at Nairobi (Gicheru, Omolo and Shah, JJ.A.) disposed of Civil Appeal No. 110 of 1992, in which Joseph Mwaniki Murimi and Peter Maina Murimi appealed against the judgment and order of the High Court of Kenya at Nairobi (Lady Justice Aluoch) dated 19th December 1990 in Civil Appeal No. 56 of 1988. The court held the appeal wholly incompetent on two independent grounds. First, the order at page 47 of the record, which was the order purportedly appealed against, was not certified, so there was nothing properly before the court to withdraw. Secondly, the matter constituted a third appeal, and under section 72(2) of the Civil Procedure Act no appeal lay to the Court of Appeal against such a decision. The court accordingly struck out the appeal as incompetent but made no order as to costs, meaning each party bears its own costs. The ruling was delivered at Nairobi on 23rd April 1996 as a single judgment of the whole bench, with no separate or dissenting opinions. The decision binds subordinate courts and the High Court on the propositions that an uncertified order cannot found an appeal and that third appeals do not lie to the Court of Appeal under section 72(2) of the Civil Procedure Act.

Key legal issues

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01

Competency of the appeal

Holding

The appeal was struck out as incompetent because the order purportedly appealed against was not certified and, being a third appeal, no appeal lay to the Court of Appeal under section 72(2) of the Civil Procedure Act.

Reasoning

The court identified the order at page 47 of the record as the one purportedly appealed against and found it was not certified, depriving the appeal of a valid foundation. It further noted that this was a third appeal, and section 72(2) of the Civil Procedure Act bars a third appeal to the Court of Appeal. On both grounds the appeal was wholly incompetent and there was nothing to withdraw, so it was struck out with no order as to costs.

p. 1

Legal principles established

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  • An order that is not certified cannot sustain an appeal to the Court of Appeal.
  • Under section 72(2) of the Civil Procedure Act, a third appeal does not lie to the Court of Appeal.

Court orders

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  1. 1.The appeal struck out as incompetent
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure Actsection 72(2)
On appeal from
High Court of Kenya at Nairobi
Civil Appeal No. 56 of 1988
Jurisdiction invoked
Section 72(2) of the Civil Procedure Act (jurisdiction over second and third appeals)

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, "Joseph Mwaniki Murimi & another v Mwangi Ndeere & another [1996] KECA 181 (KLR)", Case Analysis (1996). Civil Appeal No. 110 of 1992. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1996/181/eng@1996-04-23

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