[1995] KECA 63 (KLR)
The Court held that, although the respondent had known about the illegible pages since April 1994, an adjournment should be granted to allow the record to be regularized in the interest of justice. However, the respondent was condemned to pay the costs of the adjournment, assessed at Kshs. 5,000, due to prior...
Source-derived case information.
- Citation
- [1995] KECA 63 (KLR)
- Parties
- Appellant: Bamburi Portland Cement Co. Ltd; Respondent: Imranali Chandbhai Abdulhussein
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 83 of 1995
- Procedural Posture
- Civil Appeal / Interlocutory Ruling on Adjournment and Record Competence
- Outcome
- Adjournment granted with costs to appellant; notice of motion to strike out appeal dismissed with costs.
- Judges
- JM Gachuhi
- Legal Topics
- Appeal Record Completeness, Adjournment, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bamburi Portland Cement Co. Ltd
Appellant
Imranali Chandbhai Abdulhussein
Respondent
Procedural Posture
Civil Appeal / Interlocutory Ruling on Adjournment and Record Competence
Legal Issues
- 1 Whether the presence of illegible pages in the record of appeal renders the appeal incompetent.
- 2 Whether an adjournment should be granted to allow the respondent to file a supplementary record.
- 3 Who should bear the costs of the adjournment.
Ratio Decidendi
The Court held that, although the respondent had known about the illegible pages since April 1994, an adjournment should be granted to allow the record to be regularized in the interest of justice. However, the respondent was condemned to pay the costs of the adjournment, assessed at Kshs. 5,000, due to prior knowledge of the defect and delay in raising the issue. The Court also dismissed the respondent's notice of motion to strike out the appeal, which had been purportedly withdrawn, with costs. The supplementary record, if any, was to be filed within 45 days, and the costs paid within 14 days, failing which execution would issue. The appeal was to be listed for hearing in the next...
Court Disposition
Adjournment granted with costs to appellant; notice of motion to strike out appeal dismissed with costs.
Orders
- Adjournment granted to allow filing of supplementary record within 45 days.
- Notice of motion to strike out appeal dismissed with costs.
Full Case Text
Judgment text and source record
35 paragraphs
IN THE COURT OF APPEAL
AT MOMBASA
(CORAM: GACHUHI, OMOLO & LAKHA, JJ.A.)
CIVIL APPEAL NO. 83 OF 1995
BETWEEN
BAMBURI PORTLAND CEMENT CO. LTD……………............................................……..APPELLANT
AND
IMRANALI CHANDBHAI ABDULHUSSEIN……………........................................…….RESPONDENT
(Appeal from a judgment and decree of the High Court of Kenya at Mombasa (Justice
Wambilyangah) dated 7th December, 1994
IN
H.C.C.C. NO. 749 OF 1992)
***********************
RULING OF THE COURT
Ruling respondent through his advocate, Dr. Khaminwa, complained at the start of the hearing of the appeal that the record of appeal contains illegible pages which rendered the record of appeal incompetent. He relied on Rule 13 of the Rules of this Court.
Mr. Khanna for the appellant replied that the plaintiff produced the original exhibits and requested the Court to allow him to withdraw them and replaced then with photocopies as he intended to use them elsewhere.
It was then when Dr. Khaminwa applied to the Court for adjournment to enable him to obtain these exhibits from his clients and then file the supplementary record.
Although Mr. Khanna stated that he will not refer to these exhibits and that if he does not refer to them, it will not be open to Dr. Khaminwa to refer to them, we feel that for the purpose of putting the record straight the adjournment should be granted but Dr. Khaminwa having known of the position since his firm was served with the record of appeal is April 1994, should be condemned to costs for the adjournment is granted on the following terms:-
The Notice of Motion filed in Court yesterday for striking out the appeal which Dr. Khaminwa purported to withdraw is hereby dismissed with costs.
Costs of adjournment assessed at Kshs.5,000/= is awarded tot he appellant.
Supplementary record if any, be filed within 45 days from to-day.
The said costs to be paid within 14 days from to-day failing which execution to issue.
This appeal to be listed for hearing during the next session in Mombasa.
Dated and delivered at Mombasa this 26th day of July, 1995
J. M. GACHUHI
…………………..
JUDGE OF APPEAL
R. S. C. OMOLO
………………….
JUDGE OF APPEAL
A. A. LAKHA
…………………….
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR