[2003] KECA 119 (KLR)
The Court held that the omission of the judge's notes preceding the ruling of July 22, 1997 and the judgment of June 24, 1994 from the record of appeal rendered the appeal incompetent. These documents were necessary and relevant for the proper consideration of the appeal, as agreed by counsel. The Court further...
Source-derived case information.
- Citation
- [2003] KECA 119 (KLR)
- Parties
- Applicant: AL-NASIBH TRADING CO LTD; Respondent: DOLPHIN PALMS LIMITED; Respondent: HAPPY TWINS FREIGHT FORWARDERS LTD; Respondent: SAMUEL ALEX AYIEKO OYUGI; Respondent: MARGARET AKINYI AYIEKO
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Malindi
- Jurisdiction
- Kenya
- Case Number
- ? 108 of 2001
- Procedural Posture
- Civil Appeal / Application to Strike Out Record of Appeal
- Outcome
- appeal struck out as incompetent
- Legal Topics
- Record of Appeal, Court of Appeal Rules, Striking Out Appeal, Relevance of Documents
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
AL-NASIBH TRADING CO LTD
Applicant
DOLPHIN PALMS LIMITED
Respondent
HAPPY TWINS FREIGHT FORWARDERS LTD
Respondent
SAMUEL ALEX AYIEKO OYUGI
Respondent
MARGARET AKINYI AYIEKO
Respondent
Procedural Posture
Civil Appeal / Application to Strike Out Record of Appeal
Legal Issues
- 1 Whether the omission of judge's notes and an earlier judgment from the record of appeal renders the appeal incompetent.
- 2 Whether the proviso to rule 85(1) allows a party to unilaterally determine document relevance without recourse to rule 85(3).
Ratio Decidendi
The Court held that the omission of the judge's notes preceding the ruling of July 22, 1997 and the judgment of June 24, 1994 from the record of appeal rendered the appeal incompetent. These documents were necessary and relevant for the proper consideration of the appeal, as agreed by counsel. The Court further clarified that the proviso to rule 85(1) does not grant a party absolute discretion to exclude documents from the record; rather, it must be read in conjunction with rule 85(3), which provides for the Registrar or judge to determine the relevance of documents upon application. As such, the appeal was struck out for non-compliance with the mandatory requirements of the Court of...
Court Disposition
appeal struck out as incompetent
Orders
- Civil Appeal No. 108 of 2001 is struck out for being incompetent.
- The appellant shall pay to the first respondent the costs of the appeal and of the application.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT MOMBASA
CORAM: TUNOI, OWUOR & KEIWUA, JJ.A.
CIVIL APPEAL (APPLICATION) NO. 108 OF 2001
BETWEEN
AL-NASIBH TRADING CO LTD ............ APPLICANT/1ST RESPONDENT
AND
DOLPHIN PALMS LIMITED
HAPPY TWINS FREIGHT FORWARDERS LTD
SAMUEL ALEX AYIEKO OYUGI
MARGARET AKINYI AYIEKO ........................................... RESPONDENTS
(Application to strike out record of appeal from an order
of the High Court of Kenya at Mombasa (Angawa J)
dated 22nd July, 1997
in
H.C.C.S. NO. 234 OF 1994)
****************
RULING OF THE COURT
By its application brought under rules 80 and 85 (1) (d) and (g) of the Court of Appeal Rules the first respondent seeks to have this appeal struck out. Rule 80 is relied on because a step has not been taken by the appellant in the appeal. Rules 85 (1) (d) and (g) are cited because these respectively require that the trial judge's notes of the hearing and the judgment or order of the court have not been incluTdheed ipnr otcheee driencgosr do ro f naoptpeesa lw.hich have been ommitted from the record of appeal are those prior to September 11, 1995 which were long before the ruling appealed from dated July 22, 1997. The judgment ommitted from the record is that one dated June 24, 1994 and which triggered the objection proceedings on which the ruling of July 22, 1997 was the culmination of.
There is some consensus among counsel for these parties that in order to appreciate what the objection proceedings were all about, this Court sitting on appeal, would need to peruse the earlier judge's notes and judgment.
It is therefore our view that both the judge's notes preceding the ruling of July 22, 1997 and the judgment of June 24, 1994 are not only necessary but relevant in the consideration of the appeal.
One other matter which had been emphasised by Mrs Gudka for the respondent is that the proviso to rule 85 (1)allows a party to determine and decide which documents are irrelevant or relevant to the appeal without recourse torule 3 of that rule which gives the Registrar or judge of the superior court the discretion to exclude documents when an application is made to that effect. We do not think that Mrs Gudka's submission can possibly be right because if it is, it will renderrule 85 (3) otiose or irrelevant. We are of the view that the proviso torule 85 (1) is to be read and construed together with rule 85 (3) and we so hold.
Accordingly, Civil Appeal No. 108 of 2001 is struck out for being incompetent. The appellant shall pay to the first respondent the costs of the appeal and of the application.
Dated and delivered at Mombasa this 24th day of January, 2003.
P. K. TUNOI
---------------
JUDGE OF APPEAL
E. OWUOR
---------------
JUDGE OF APPEAL
M. Ole KEIWUA
---------------
JUDGE OF APPEAL
I certify that this is a
true copy of the original.
DEPUTY REGISTRAR