Phillip Wamacho Chemiati, Wafula Chemiati & Paul Wepukhulu v Charles Nakitare
The bottom line
#Kenya's Court of Appeal struck out an appeal because the record lacked a certified copy of the decree, confirming this document is mandatory.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an appeal whose record omits a certified copy of the decree, as mandatorily required by rule 85(1)(h) of the Court of Appeal Rules, is competent
Key legal issues
#Whether omission of a certified copy of the decree from the record of appeal is fatal to the appeal
Yes - the requirement of rule 85(1)(h) is mandatory and its breach renders the appeal incurably defective and incompetent, warranting striking out
The court treated rule 85(1)(h) of the Court of Appeal Rules as imposing a mandatory requirement that the record of appeal include a certified copy of the decree. Because the record before it lacked that document, the appeal was structurally defective and could not be cured; the only course open was to strike it out. The court nonetheless declined to award costs because the deceased respondent's legal representatives had not been substituted.
Legal principles established
#- An appeal to the Court of Appeal whose record does not include a certified copy of the decree, as mandatorily required by rule 85(1)(h) of the Court of Appeal Rules, is incurably defective and incompetent and must be struck out
Court orders
#- 1.The appeal is struck out as incompetent
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Eldoret
- H.C.C.C. No. 80 of 1977
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules (appeal as of right from the High Court); the judgment does not cite a specific constitutional provision
Relief refused
#Hearing of the appeal on the merits
The record of appeal lacked the certified copy of decree mandatorily required by rule 85(1)(h), rendering the appeal incurably defective
Costs
No order as to costs, as the legal representatives of the deceased respondent had not been substituted
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.
The record of appeal does not include a certified copy of decree, as is mandatorily required by rule 85(1) (h) of the Rules of this court. This appeal is therefore incurably defective.
It is therefore incompetent and is ordered struck out but with no order as to costs, as the legal representatives of the deceased respondent had not been substituted.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Phillip Wamacho Chemiati, Wafula Chemiati & Paul Wepukhulu v Charles Nakitare", Case Analysis (1997). Civil Appeal/Application No. 186 of 1991. Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.