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Court of AppealStruck OutCivil Appeal No. 7 of 1995

NJOROGE MAKUMI vs DAVID MWANGI NDUATI [1997] KECA 289 (KLR)

Court of Appeal
16 April 1997
AAA. M. AkiwumiALA. A. LakhaSBS. E. O. Bosire
242 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~1 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal struck out an appeal because a document wasn't translated into English and the appeal was filed late.

What this practically means

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Executive summary

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This short ruling of the Court of Appeal at Nairobi (Akiwumi and Lakha JJ.A. and Bosire Ag. J.A.) disposed of Civil Appeal No. 7 of 1995, an appeal by Njoroge Makumi against the judgment and decree of the High Court (Mango J) dated 4 September 1991 in H.C.C.C. No. 2710 of 1989. Counsel holding brief for the appellant sought an adjournment, but the court declined to entertain it, holding that no competent appeal was before it. Two defects were identified. First, the record contained a documentary exhibit in a language other than English with no translation, contrary to rule 85(1)(f) of the Court of Appeal Rules; the court held that this requirement is mandatory and the defect incurable. Second, the appeal had been filed out of time. The respondent had applied under rule 80 of the Rules for the striking out of the appeal, and the court allowed that application on the second ground, striking out the appeal with costs to the respondent. The ruling binds lower courts and practitioners on the mandatory character of the translation requirement and the consequence of out-of-time filing. No separate opinions were delivered; the bench was unanimous. No external authorities were cited.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether there was a competent appeal before the court given the absence of a translation of a documentary exhibit in a language other than English
  2. 2.Whether the appeal, having been filed out of time, should be struck out on the respondent's application under rule 80

Key legal issues

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01

Competence of an appeal where a documentary exhibit is not translated into English

Holding

The absence of a translation of a non-English documentary exhibit, as required by rule 85(1)(f) of the Court of Appeal Rules, is a mandatory requirement whose breach is an incurable defect.

Reasoning

The court noted that at page 40 of the record there was a documentary exhibit in a language other than English with no translation, contrary to rule 85(1)(f) of the Court of Appeal Rules. Because the provision is mandatory, the defect could not be cured and the appeal was incompetent on that ground.

p. 2
02

Striking out an appeal filed out of time

Holding

An appeal filed out of time is incompetent and must be struck out where the respondent applies under rule 80 of the Court of Appeal Rules.

Reasoning

The court identified two grounds of incompetence: the untranslated exhibit and the appeal having been filed out of time. On the respondent's rule 80 application, the court allowed the striking out on the second ground, the late filing, and awarded costs to the respondent.

p. 2

Legal principles established

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  • A documentary exhibit in a language other than English must be accompanied by a translation as required by rule 85(1)(f) of the Court of Appeal Rules; the requirement is mandatory and failure to comply is an incurable defect rendering the appeal incompetent.
  • An appeal filed out of time is incompetent and liable to be struck out on application under rule 80 of the Court of Appeal Rules.

Court orders

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  1. 1.The appeal was struck out with costs
  2. 2.The respondent's application under rule 80 of the Court of Appeal Rules for striking out the appeal was allowed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AA
majority
AL
majority
SB
majority
On appeal from
High Court of Kenya
H.C.C.C. No. 2710 of 1989
Jurisdiction invoked
Appeal to the Court of Appeal under the applicable appellate provisions, considered under the Court of Appeal Rules (rules 80 and 85(1)(f))

Relief refused

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Adjournment of the appeal sought by counsel holding brief for the appellant

The court held there was no competent appeal before it, so an adjournment was pointless

p. 2

Costs

The appeal was struck out with costs to the respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Notwithstanding that Mr. Nganga, Counsel who is holding brief for counsel for the appellant, has applied for the adjournment of this appeal, we do not consider that there is a competent appeal before us.
p. 2Competence of appeal
The provision being mandatory the defect is incurable.
p. 2Mandatory nature of rule 85(1)(f) translation requirement
In the circumstances the appeal must be struck out with costs, the respondent having made an appropriate application under rule 80 of the Rules of this Court for the striking out of this appeal, which application we allow on the second of the two grounds we set out earlier.
p. 2Final orders - striking out and costs

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "NJOROGE MAKUMI vs DAVID MWANGI NDUATI [1997] KECA 289 (KLR)", Case Analysis (1997). Civil Appeal No. 7 of 1995. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/289/eng@1997-04-16

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