A A v M H [2019] KECA 990 (KLR)
The bottom line
#The Court of Appeal dismissed AA's appeal because its grounds attacked a ruling that did not exist, showing appeals must match the actual decision being challenged.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appeal, whose grounds were directed at a ruling dated 21st January 2009 that does not exist on the record, was competent against the ruling of 29th January 2009
Key legal issues
#Competence of an appeal where the grounds of appeal do not correspond to the decision appealed from
The appeal was incompetent because the eight grounds were framed against a ruling of 21st January 2009 which does not exist in the High Court record, leaving no nexus with the ruling of 29th January 2009 actually under appeal.
The notice of appeal targeted the ruling delivered on 29th January 2009 by Rawal, J. However, the memorandum of appeal dated 4th October 2010 listed grounds prepared in respect of a ruling dated 21st January 2009, a decision absent from the High Court record. The respondent demonstrated in submissions that there was no connection between the ruling and the grounds. Additionally, the ruling of 29th January 2009 had favoured the appellant by staying implementation of the consent order, so the appellant disclosed no grievance. The court therefore dismissed the appeal as incompetent, with costs to the respondent.
Legal principles established
#- An appeal whose memorandum of appeal is directed at a decision other than the one actually appealed from, and which discloses no grievance against the decision below, is incompetent and must be dismissed.
Court orders
#- 1.The appeal is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Divorce Cause No. 7 of 2004
- Jurisdiction invoked
- Appeal from the High Court under the Court of Appeal's appellate jurisdiction (statutory appeal; specific provision not stated in the judgment)
Relief refused
#The appellant's appeal against the ruling of 29th January 2009
The appeal was incompetent as the grounds of appeal related to a non-existent ruling of 21st January 2009 and disclosed no grievance, the ruling appealed from having been in the appellant's favour
Costs
Appeal dismissed 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.
As a result therefore, the grounds of appeal are completely off tangent as they have nothing to do the issues determined in the ruling dated 29 th January 2009.
Obviously, the appeal is incompetent as it discloses no grievance, and is accordingly dismissed with costs to the respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "A A v M H [2019] KECA 990 (KLR)", Case Analysis (2019). Civil Appeal No. 262 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/990/eng@2019-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.