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Court of AppealAllowedCivil Application No. NAI 261 of 1999 (Nyr 20/99)

MWANIKI KIBUI vs JANE WERU (ADMINISTRIX OF WERU KARURI) [1999] KECA 52 (KLR)

Court of Appeal of Kenya
29 October 1999
193 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~1 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that a notice of appeal can be struck out if the appellant never lodges the record of appeal.

What this practically means

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Executive summary

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This is a brief ruling of the Court of Appeal at Nyeri (Kwach, Shah and Bosire, JJ.A.) delivered on 29 October 1999 in Civil Application No. NAI 261 of 1999. The applicant, Mwaniki Kibui, applied to strike out a notice of appeal dated 8 April 1993 and lodged in the High Court at Meru in H.C.C.C. No. 10 of 1991, arising from an order of Kuloba J dated 29 March 1993 in H.C.CR.A. No. 10 of 1991. The ground of the application was that the essential step of lodging the record of appeal had not been taken. The respondent did not oppose the application, and the court observed that this was 'quite rightly' so. The court unanimously allowed the application, ordered the notice of appeal struck out, and awarded the applicant the costs of the application. The ruling contains no citation of authorities or statutory provisions, no separate opinions, and no dissent. Its practical significance lies in confirming that a notice of appeal is vulnerable to being struck out where the essential step of lodging the record of appeal has not been taken, particularly where the application is unopposed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the notice of appeal should be struck out on the ground that the essential step of lodging the record of appeal has not been taken

Key legal issues

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01

Whether a notice of appeal can be struck out for failure to lodge the record of appeal

Holding

Yes; the court struck out the notice of appeal because the essential step of lodging the record of appeal had not been taken, and noted the application was unopposed and rightly so.

Reasoning

The applicant sought striking out of the notice of appeal on the basis that the record of appeal, an essential step in prosecuting the appeal, had not been lodged. The respondent did not oppose the application, and the court agreed that the opposition would have been unjustified. The court accordingly struck out the notice and awarded costs to the applicant.

p. 1

Legal principles established

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  • A notice of appeal may be struck out where the essential step of lodging the record of appeal has not been taken.

Court orders

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  1. 1.The notice of appeal dated 8/4/93 lodged in Meru H.C.C.C. No. 10 of 1991 is struck out
  2. 2.The applicant is awarded the costs of the application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Meru
H.C.CR.A. No. 10 of 1991
Jurisdiction invoked
Inherent appellate jurisdiction of the Court of Appeal over notices of appeal lodged in the High Court (application to strike out a notice of appeal); no specific constitutional or statutory provision is cited in the judgment.

Quotable passages

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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 notice of appeal dated 8/4/93, lodged in Meru H.C.C.C. NO. 10 of 1991 is hereby ordered struck out. The applicant will have costs of this application.
p. 1Final orders - striking out of notice of appeal and costs
on the ground that the essential step of lodging the record of appeal has not been taken
p. 1Ground for striking out a notice of appeal

Issues in the judgment

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minor

The judgment is a very short ruling and does not state the specific rule or statutory provision under which the application was brought.

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, "MWANIKI KIBUI vs JANE WERU (ADMINISTRIX OF WERU KARURI) [1999] KECA 52 (KLR)", Case Analysis (1999). Civil Application No. NAI 261 of 1999 (Nyr 20/99). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/52/eng@1999-10-29

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