Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealStruck OutCivil Appeal No. 197 of 1998

Shem Okeyo Onyango v Camlus Oduor Madialo

Court of Appeal
24 November 1999
GIGicheruPhilip Kiptoo TunoiTunoiLALakha
183 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~1 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal struck out an appeal because the record lacked a certified copy of the order being appealed, showing filing rules are strictly enforced.

What this practically means

#

Executive summary

#
This was an appeal to the Court of Appeal at Kisumu by Shem Okeyo Onyango against a ruling and order of the High Court of Kenya at Kisumu (Wambilyangah, J.) dated 21st April 1998 in H.C.C.C. No. 107 of 1992. The respondent had applied to strike out the appeal, raising among other points the absence from the record of a certified copy of the order appealed from. Before the Court of Appeal (Gicheru, Tunoi and Lakha, JJ.A.), counsel for the appellant conceded that the record did not contain the certified copy of the order appealed from, which rule 85(1)(h) of the Court of Appeal Rules mandatorily requires. On that concession the court held the appeal incompetent and struck it out, awarding costs to the respondent because the point of non-inclusion had been raised in the respondent's striking-out application. The judgment was delivered on 24th November 1999. The decision is a short procedural ruling: it establishes that compliance with rule 85(1)(h) as to a certified copy of the order appealed from is mandatory, and that an appeal filed without it is incompetent and may be struck out with costs. No substantive issues from the underlying suit were determined, and the decision of the High Court was neither affirmed nor reversed on the merits.

Questions the Court framed

#

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

  1. 1.Whether an appeal whose record lacks a certified copy of the order appealed from, as mandatorily required by rule 85(1)(h) of the Court of Appeal Rules, is incompetent

Key legal issues

#
01

Competency of an appeal lacking a certified copy of the order appealed from

Holding

The appeal was incompetent because the record omitted the certified copy of the order appealed from required by rule 85(1)(h), and it was struck out with costs.

Reasoning

Counsel for the appellant conceded that the record did not contain the certified copy of the order appealed from. Rule 85(1)(h) mandatorily requires such a certified copy. Because the requirement is mandatory, its omission rendered the appeal incompetent. The point had been raised in the respondent's application to strike out the appeal, so costs were awarded to the respondent.

p. 1

Legal principles established

#
  • An appeal whose record does not contain a certified copy of the order appealed from, as mandatorily required by rule 85(1)(h) of the Court of Appeal Rules, is incompetent and liable to be struck out.

Court orders

#
  1. 1.The appeal is struck out with costs to the respondent

The bench

#

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

GI
majority
Philip Kiptoo Tunoi
majority
LA
majority
On appeal from
High Court of Kenya at Kisumu
H.C.C.C. No. 107 of 1992
Jurisdiction invoked
Court of Appeal Rules, rule 85(1)(h)

Relief refused

#

Prosecution of the appeal on its merits

The record lacked the certified copy of the order appealed from mandatorily required by rule 85(1)(h), rendering the appeal incompetent

p. 1

Costs

Appeal struck out with costs to the respondent

Quotable passages

#

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

In the result the said appeal is incompetent and is struck out with costs to the respondent as the point of non-inclusion of the certified copy of the order appealed from was raised in the respondent's application to strike out this appeal.
p. 1Final orders - striking out incompetent appeal
the record of this appeal does not contain a certified copy of the order appealed from as is mandatorily required by rule 85(1)(h) of the Court of Appeal Rules
p. 1Mandatory requirement of certified order under rule 85(1)(h)

Issues in the judgment

#
minor

Header shows both 'HIGH COURT OF KENYA AT MOMBASA' and 'COURT OF APPEAL AT KISUMU'; coram and signature block initials do not match the named judges.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Shem Okeyo Onyango v Camlus Oduor Madialo", Case Analysis (1999). Civil Appeal No. 197 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/209/eng@1999-11-24

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