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Court of AppealStruck OutCivil Appeal 268 of 1998· [1999] KECA 117 (KLR)

KIRIMI M'MUNA vs PETER RIUNGU [1999] KECA 117 (KLR)

Court of Appeal of Kenya
28 October 1999
RKR.O. KwachAAA.M. AkiwumiASA.B. Shah
182 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 lower court's decree, confirming this document cannot be added later.

What this practically means

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Executive summary

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This is a brief order of the Court of Appeal at Nyeri (Kwach, Akiwumi and Shah, JJA) dated 28 October 1999 striking out Civil Appeal 268 of 1998 as incompetent. The appeal, brought by Kirimi M'Muna against Peter Riungu from a Magistrate's Court decision, was defective in two respects. First, the order against which the appeal was filed was undated and drawn up in total disregard of what a decree should read, yet it was a primary document. Secondly, the record contained no certified copy of the decree of the Magistrate's Court, which is likewise a primary document required to be included in the record of appeal under rule 85(2) of the Court's Rules read with rule 85(1). The court further held that rule 85(2A) does not permit lodgment of such a document by way of a supplementary record, so the omission could not be cured after the fact. On those bases the court refused an adjournment sought by the appellant, reasoning that because the appeal was incompetent, an adjournment would not help. The appeal was struck out with no order as to costs. The judgment is a single order of the whole court with no separate opinions and cites no case authorities; its binding significance lies in the requirement that a certified copy of the decree be included in the record of appeal and that supplementary records cannot be used to introduce it.

Key legal issues

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01

Competence of the appeal for failure to include a certified copy of the decree in the record

Holding

The appeal was incompetent and was struck out; the undated and defective order could not stand in for the decree, and the missing certified decree could not be introduced by supplementary record.

Reasoning

The court treated the decree as a primary document that must appear in the record of appeal under rule 85(2) read with rules 85(1) and 85(2A). The order filed was undated and drawn up in disregard of what a decree should read, and no certified copy of the Magistrate's Court decree was included. Because the defect went to competence, an adjournment would not assist the appellant, so the appeal was struck out without costs.

p. 2

Legal principles established

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  • A certified copy of the decree of the lower court is a primary document that must be included in the record of appeal, and a defective or uncertified order cannot substitute for it; such a document cannot be lodged by way of a supplementary record.

Court orders

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  1. 1.Refusal of the adjournment sought by the appellant
  2. 2.Striking out the appeal with no order as to costs
On appeal from
Magistrate's Court
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal under the Rules of this Court (rule 85(1), 85(2) and 85(2A))

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, "KIRIMI M'MUNA vs PETER RIUNGU [1999] KECA 117 (KLR)", Case Analysis (1999). Civil Appeal 268 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/117/eng@1999-10-28

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