NJOROGE MAKUMI vs DAVID MWANGI NDUATI [1997] KECA 289 (KLR)

REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAIROBI (CORAM: AKIWUMI, LAKHA JJ.A. & BOSIRE AG. J.A) CIVIL APPEAL NO. 7 OF 1995 BETWEEN NJOROGE MAKUMI........................A.N.D. ..............APPELLANT DAVID MWANGI NDUATI....................................RESPONDENT (An appeal from the judgment and decree of the High Court of Kenya (Hon. Mr. Justice Mango) dated 4th September, 1991 in H.C.C.C. NO. 2710 OF 1989) ************* RULING OF THE COURT Notwithstanding that Mr. Nganga, Counsel who is holding brief for counsel for the appellant, has applied for the adjournment of this appeal, we do not consider that there is a competent appeal before us. Firstly, at page 40 of the record there appears a documentary exhibit in a language other than English. There is no translation thereof as required by rule 85 (1)(f) of the Rules of this Court. The provision being mandatory the defect is incurable. Moreover, the appeal was filed out of time. In the circumstances the appeal must be struck out with costs, the respondent having made an appropriate application under rule 80 of the Rules of this Court for the striking out of this appeal, which application we allow on the second of the two grounds we set out earlier. Order accordingly. Dated at Nairobi this 16th day of April, 1997. A. M. AKIWUMI ................ JUDGE OF APPEAL A. A. LAKHA ............... JUDGE OF APPEAL S.E.O. BOSIRE ................... AG. JUDGE OF APPEAL

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