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Court of AppealStruck OutCivil Appeal (Appli) 47 of 2004· [2006] KECA 321 (KLR)
Egerton University v Githinji Karoki
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·~1 min to read original · ~4 min briefThe bottom line
#Kenya's Court of Appeal struck out an appeal because its notice of appeal and decree were incurably defective, leaving the High Court's judgment standing.
What this practically means
#Executive summary
#This is a short ruling of the Court of Appeal at Nakuru (Omolo, Tunoi and Deverell, JJ.A) on a notice of motion dated 16th March 2004 by Egerton University seeking to strike out Civil Appeal No. 47 of 2004, an appeal by Githinji Karoki from the judgment and decree of the High Court at Nakuru (Angawa, J) dated 27th November 2001 in HCCC No. 117 of 1999. The University's counsel, Mr Otieno Olola, argued that the notice of appeal and the decree included in the record of appeal were incurably defective. Counsel for the respondent, Mr Karanja, conceded that the record was incurably defective and invited the court to strike it out. The court agreed, allowed the motion, struck out the appeal, and awarded the applicant the costs of both the struck-out appeal and the motion. The ruling is unreasoned in substance: it records the parties' positions and the concession, and disposes of the appeal without analysis of the defects. The underlying High Court decision was not disturbed on the merits; the appeal simply ceased to exist. The ruling binds no court on any developed proposition of law beyond confirming that an incurably defective record of appeal, particularly where conceded, will attract striking out with costs to the applicant.
Key legal issues
#01
Whether a record of appeal containing an incurably defective notice of appeal and decree warrants striking out the appeal
Holding
The court agreed with the applicant that the defects were incurable and struck out the appeal, with the respondent's concession noted.
Reasoning
The applicant submitted that the notice of appeal and decree in the record of appeal were incurably defective. Counsel for the respondent conceded the defect and joined in the request to strike out the appeal. The court agreed and allowed the motion, striking out the appeal and awarding costs to the applicant.
p. 1
Legal principles established
#- An appeal whose record includes an incurably defective notice of appeal and decree will be struck out, particularly where the respondent concedes the defect.
Court orders
#- 1.The applicant's notice of motion dated and lodged in Court on 16th March, 2004 is allowed
- 2.Civil Appeal No. 47 of 2004 is struck out
- 3.Costs of the struck out appeal and the costs of the notice of motion awarded to the applicant
- On appeal from
- High Court of Kenya at Nakuru
- HCCC No. 117 of 1999
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over an appeal from the High Court; application to strike out a defective appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Egerton University v Githinji Karoki", Case Analysis (2006). Civil Appeal (Appli) 47 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/321/eng@2006-03-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.