PAUL MUTURI MUNDUI) RUCHU GAITHO ) vs WANJIRA KIENYERE GICHANGI) JOSEPH GICHANGI KIENYERE) KENNETH KANYIRA KIENYERE) LYDIA WANJIKU KIENYERE )ANNA WANJIKU KIENYERE) JOYCE WANGARE KIENYERE )JOSEPHAT GATHUA KIENYERE) PAUL GITAHI KIENYERE) [1999] KECA 109 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you cannot withdraw an appeal filed without a certified copy of the decree; such a defective appeal is struck out with costs.
What this practically means
#Executive summary
#Key legal issues
#Whether a defective appeal can be withdrawn by the appellant
No. An appeal whose record lacks a certified copy of the decree as required by rule 85(1)(h) is incompetent, and an incompetent appeal is incapable of withdrawal; the court strikes it out.
The appellants' counsel sought to withdraw the appeal because the record was defective. The court held that the defect went to competence: without a certified copy of the decree the appeal was not properly before the court at all. An incompetent appeal cannot be withdrawn as a matter of right; the court's jurisdiction is to strike it out, which it did with costs to the respondents.
Consequences of failure to serve the record of appeal on the respondents
Where an appeal has been lodged but not served for over a year, the respondents are denied the opportunity to move under rule 80 to strike it out, and the court will strike out the appeal with costs.
The appeal had been lodged more than a year earlier without service on the respondents. This deprived them of the chance to file their own application under rule 80. The court treated the inordinate non-service as justifying striking out the appeal on its own motion, with costs to the respondents, rather than allowing the appellants to control the fate of the incompetent appeal by withdrawal.
Legal principles established
#- An appeal whose record does not contain a certified copy of the decree as required by rule 85(1)(h) of the Court of Appeal Rules is incompetent and cannot be withdrawn; it must be struck out.
- Failure to serve the record of appeal on respondents within a reasonable time denies them the opportunity to apply under rule 80 to strike out the appeal and justifies the court striking out the appeal on its own motion with costs.
Court orders
#- 1.The appeal struck out with costs to the respondents
- On appeal from
- High Court of Kenya at Nakuru
- H.C.C.C. No. 5 of 1988
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal under the Constitution and the Court of Appeal Rules; the appeal was struck out as incompetent rather than heard on the merits
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "PAUL MUTURI MUNDUI) RUCHU GAITHO ) vs WANJIRA KIENYERE GICHANGI) JOSEPH GICHANGI KIENYERE) KENNETH KANYIRA KIENYERE) LYDIA WANJIKU KIENYERE )ANNA WANJIKU KIENYERE) JOYCE WANGARE KIENYERE )JOSEPHAT GATHUA KIENYERE) PAUL GITAHI KIENYERE) [1999] KECA 109 (KLR)", Case Analysis (1999). Civil Appeal No. 29 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/109/eng@1999-02-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.