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Court of AppealStruck OutCivil Appeal No. 109 of 1999· [1999] KECA 182 (KLR)
STEPHEN WANYEE KINUTHIA vs SIMON MACHARIA KINUTHIA [1999] KECA 182 (KLR)
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·~1 min to read original · ~4 min briefThe bottom line
#Kenya's Court of Appeal struck out an appeal because a fatal error in the appeal documents made it incompetent, and the appellant's own lawyer conceded the point.
What this practically means
#Executive summary
#This is a very short ruling of the Court of Appeal at Nairobi (Gicheru, Kwach and Omolo, JJ.A.) in Civil Appeal No. 109 of 1999, delivered on 15 December 1999. The appellant, Stephen Wanyee Kinuthia, had appealed against Simon Macharia Kinuthia. At the hearing of the motion, Mr. Kigotho, counsel for the appellant, conceded that an error on the memorandum of appeal was fatal and rendered the appeal incompetent. In light of that concession, the court held that it had no option but to strike out the appeal, and it did so. The respondent was awarded the costs of both the motion and the appeal. The ruling is a single judgment of the whole court with no separate opinions and no dissent. It cites no authorities and no statutory provisions. Because the appeal was struck out on competency grounds, the court made no determination on the merits and did not affirm, reverse or vary any decision below; the treatment of the prior decision is therefore not applicable. The binding takeaway for lower courts and practitioners is that a fatal error on the memorandum of appeal renders an appeal incompetent and exposes it to being struck out, particularly where, as here, the appellant's own counsel concedes the defect. The ruling is of limited precedential depth given its brevity and its reliance on a concession rather than reasoned analysis.
Key legal issues
#01
Whether the appeal was competent notwithstanding the error on the memorandum of appeal
Holding
The appeal was incompetent and was struck out, with costs to the respondent
Reasoning
The court's ruling rests entirely on the concession of the appellant's counsel, Mr. Kigotho, that the error on the memorandum of appeal was fatal and rendered the appeal incompetent. Faced with that concession, the court held it had no option but to strike out the appeal and awarded the respondent the costs of both the motion and the appeal.
p. 2
Legal principles established
#- A fatal error on the memorandum of appeal renders an appeal incompetent and the appeal must be struck out
Court orders
#- 1.The appeal is struck out
- 2.The respondent is awarded the costs of the motion and the appeal
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal under the Constitution of Kenya and the Court of Appeal Rules (not expressly stated in the ruling)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "STEPHEN WANYEE KINUTHIA vs SIMON MACHARIA KINUTHIA [1999] KECA 182 (KLR)", Case Analysis (1999). Civil Appeal No. 109 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/182/eng@1999-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.