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Court of AppealStruck OutCivil Appeal No. 36 of 1990

Ephantus Wanjohi Ruhara v 1. Eunice Wanjiku Ruhara ) 2. Jotham Gichuki Ruhara ) 3. Joseph Kago Ruhara ) 4. Duncan Maina Ruhara ) & 3 others

Court of Appeal
8 May 2002
ASA. B. ShahSBS. E. O. BosireEOE. O. O'Kubasu
235 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an entire appeal simply because the order being appealed was not certified, ending the case on a paperwork defect.

What this practically means

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Executive summary

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This brief concerns a short ruling of the Court of Appeal at Nyeri delivered on 8 May 2002 by Shah, Bosire and O'Kubasu, JJ.A., disposing of Civil Appeal No. 36 of 1990. The appeal had been lodged by Ephantus Wanjohi Ruhara against seven respondents from a ruling and order of the High Court of Kenya at Nyeri (Abdullah, J.) dated 9 November 1989 in H.C.C.C. No. 174 of 1985. The respondents applied to strike out the appeal under Rules 80 and 85(h) of the Court of Appeal Rules, their principal ground being that the order of the superior court appealed from was not certified. The Court perused the record and confirmed that the order was indeed not certified. Miss Mukuha, counsel for the respondents, 'found it impossible to resist this application and in our view properly so.' The Court accordingly struck out the appeal with costs to the applicants and also awarded them the costs of the application. The ruling disposed of the appeal on a purely procedural ground, without any adjudication of the underlying dispute between the parties, and left the High Court's decision of 9 November 1989 undisturbed. Its binding significance for lower courts and litigants lies in its enforcement of the requirement that an appeal be supported by a certified copy of the order appealed from: where the order is uncertified, the appeal is liable to be struck out under Rules 80 and 85(h) of the Court of Appeal Rules, as happened here with costs to the respondents. The ruling is a single judgment of the full bench; no separate opinions were delivered and no authorities were cited.

Key legal issues

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01

Whether an appeal should be struck out under Rules 80 and 85(h) of the Court of Appeal Rules where the order of the superior court appealed from is not certified.

Holding

Yes. The Court struck out the appeal because, on its own perusal of the record, the order of the superior court appealed from was not certified; counsel for the respondents could not resist the application, and the appeal was struck out with costs to the applicants, who also received the costs of the application.

Reasoning

The respondents applied to strike out the appeal under Rules 80 and 85(h) of the Court of Appeal Rules on the principal ground that the order appealed from was uncertified. The Court examined the record itself and verified the defect rather than acting on the assertion alone. With counsel for the respondents unable to resist the application, and the Court agreeing that this was 'properly so', the procedural deficiency was treated as dispositive. The appeal was struck out with costs to the applicants, together with the costs of the application, leaving the decision below undisturbed.

p. 1

Legal principles established

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  • An appeal in which the order of the superior court appealed from is not certified is liable to be struck out under Rules 80 and 85(h) of the Court of Appeal Rules.
  • Where an appeal is struck out for want of a certified order, the applicants (respondents) are entitled to the costs of both the appeal and the striking-out application.

Court orders

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  1. 1.The appeal is struck out.
  2. 2.The applicants (the respondents) are awarded the costs of the appeal.
  3. 3.The applicants (the respondents) are also awarded the costs of the application.
On appeal from
High Court of Kenya at Nyeri
H.C.C.C. No. 174 of 1985
Jurisdiction invoked
Not expressly stated in the ruling. The appeal lies from the High Court to the Court of Appeal; the application to strike out was brought under Rules 80 and 85(h) of the Court of Appeal Rules (referred to in the ruling as 'this Court's Rules').

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, "Ephantus Wanjohi Ruhara v 1. Eunice Wanjiku Ruhara ) 2. Jotham Gichuki Ruhara ) 3. Joseph Kago Ruhara ) 4. Duncan Maina Ruhara ) & 3 others", Case Analysis (2002). Civil Appeal No. 36 of 1990. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/187/eng@2002-05-08

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