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Court of AppealStruck OutCivil Appeal No. 15 of 2016· [2018] KECA 577 (KLR)

Asman Omar Wafula v Nixon Sifuna [2018] KECA 577 (KLR)

Court of Appeal
17 May 2018
EGE. M. GithinjiHOHannah OkwenguJMJ. Mohammed
1,310 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 lawyer filing it left the actual court ruling out of the appeal record, making it incompetent.

What this practically means

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Executive summary

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This was an appeal from an order of the High Court at Kitale (J.R. Karanja, J.) directing that an advocate-client bill of costs dated 19th January 2014, claimed at Shs. 4,192,425/=, be taxed by the Deputy Registrar. The appellant, an unsuccessful parliamentary candidate for Saboti Constituency in the March 2013 General Elections, had instructed the respondent advocate to file an election petition, which the respondent filed before ceasing to act following a notice of change of advocates. The appellant opposed taxation, asserting that fees had been agreed at Shs. 300,000/= and relying on a forensic examiner's report and an SMS in support of an alleged written fee agreement. On appeal, the appellant raised six grounds, including that the Judge erred in ordering taxation and in rejecting the electronic evidence. The Court of Appeal, however, found that the ruling appealed against had been omitted from the record of appeal, contrary to Rule 87(1)(g) of the Court of Appeal Rules, which requires the record to contain the judgment or order appealed from. Only the bare extracted order was included, without the learned Judge's findings. The Court held that the substantive decision below is the juridical basis for appellate determination of whether the points raised were wrongly decided, and that the omission deprived it of the means to determine the alleged errors on the merits. The appeal was accordingly struck out as incompetent, with costs to the respondent.

Key legal issues

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01

Competency of an appeal where the ruling appealed against is omitted from the record of appeal

Holding

The appeal is incompetent and must be struck out because the ruling, which contains the findings of the learned Judge on the issues raised, was omitted from the record of appeal as required by Rule 87(1)(g) of the Court of Appeal Rules

Reasoning

Rule 87(1)(g) requires the record of appeal to contain the judgment or order appealed from, and Rule 86(1) requires the memorandum of appeal to specify points alleged to have been wrongly decided. The appellant included only the extracted bare order, which contained none of the learned Judge's findings. Without the ruling, the Court was deprived of the means to determine on the merits whether the alleged errors of law or fact were committed, since the substantive decision below is the juridical basis for appellate review.

p. 2

Legal principles established

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  • The record of appeal must contain the judgment or order appealed from; where the substantive decision (the ruling) is omitted, the appeal is incompetent and will be struck out
  • The substantive decision of the court appealed from is the juridical basis upon which an appellate court can determine whether the points raised were wrongly decided

Court orders

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  1. 1.The appeal, being incompetent, is struck out with costs to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 87(1)(g)
  • Court of Appeal RulesRule 86(1)
On appeal from
High Court of Kenya at Kitale
H.C. Misc Application No. 26 of 2014
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal to correct errors of law or fact of the High Court; leave to appeal granted by Hon. S. Githinji, J. on 27th October, 2015

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, "Asman Omar Wafula v Nixon Sifuna [2018] KECA 577 (KLR)", Case Analysis (2018). Civil Appeal No. 15 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/577/eng@2018-05-17

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