[1999] KECA 153 (KLR)
The Court held that the omission of the full proceedings from the record of appeal was a breach of rule 85(1)(d) of the Court of Appeal Rules. The Court emphasized that the requirement to include such documents is mandatory and not subject to the appellant's discretion under rule 85(3). As the proceedings were...
Source-derived case information.
- Citation
- [1999] KECA 153 (KLR)
- Parties
- Applicant: Boniface Kaguo Mwangi; Applicant: Contratours Limited; Respondent: Sanken Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 183 of 1998
- Procedural Posture
- Civil Appeal / Application to Strike Out Appeal
- Outcome
- Appeal struck out with costs to the applicants, including costs of the motion filed on 26th November, 1998.
- Legal Topics
- Record of Appeal, Striking Out Appeal, Court of Appeal Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Boniface Kaguo Mwangi
Applicant
Contratours Limited
Applicant
Sanken Limited
Respondent
Procedural Posture
Civil Appeal / Application to Strike Out Appeal
Legal Issues
- 1 Whether the appeal should be struck out for failure to include full proceedings in the record of appeal as required by rule 85(1)(d) of the Court of Appeal Rules.
- 2 Whether the appellant can decide the relevance or necessity of documents to be included in the record of appeal under rule 85(3).
Ratio Decidendi
The Court held that the omission of the full proceedings from the record of appeal was a breach of rule 85(1)(d) of the Court of Appeal Rules. The Court emphasized that the requirement to include such documents is mandatory and not subject to the appellant's discretion under rule 85(3). As the proceedings were admittedly not included, the appeal was fatally defective and had to be struck out. The application to strike out the notice of appeal and the appeal was therefore allowed, with costs to the applicants.
Court Disposition
Appeal struck out with costs to the applicants, including costs of the motion filed on 26th November, 1998.
Orders
- The appeal is struck out.
- The notice of appeal is struck out.
Full Case Text
Judgment text and source record
8 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAIROBI (CORAM: KWACH, TUNOI & LAKHA, JJ.A.) CIVIL APPEAL (APPLICATION) NO. 183 OF 1998 BETWEEN
BONIFACE KAGUO MWANGI ............................. 1STAPPLICANT CONTRATOURS LIMITED ............................... 2NDAPPLICANT
AND
SANKEN LIMITED .................................... RESPONDENT
RULING OF THE COURT
This is an application under rule 80 of the Rules of this Court to strike out the notice of appeal and the appeal for breach of the provisions of rule 85(1)(d) in that the record of appeal does not include the full proceedings. These proceedings are admittedly not included in the record and it is not for the appellant to decide whether a document is relevant or necessary in view of sub-rule 85(3) of the Rules. Accordingly, the application succeeds. The appeal is struck out with costs including the costs of the motion filed on 26th November, 1998. Made and delivered at Nairobi this 27th day of April, 1999.
R.O. KWACH ................. JUDGE OF APPEAL P.K. TUNOI ................. JUDGE OF APPEAL A.A. LAKHA ................. JUDGE OF APPEAL
I certify that this is a true copy of the original. DEPUTY REGISTRAR