[1996] KECA 143 (KLR)
The Court held that the omission of a certified copy of the decree from the record of appeal is a fatal defect under Rule 85(i)(h) of the Court of Appeal Rules. This rule is mandatory, and non-compliance renders the appeal incurably incompetent. As a result, the appeal was struck out with costs to the respondent.
Source-derived case information.
- Citation
- [1996] KECA 143 (KLR)
- Parties
- Appellant: B.R. Aggarwal (Suing in his capacity as executor of Late Lekraj Aggarwal); Respondent: Munshiram & Company Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 59 of 1991
- Procedural Posture
- Civil Appeal / Ruling on Competence of Appeal
- Outcome
- Appeal struck out as incompetent due to procedural defect.
- Legal Topics
- Appeal Record Requirements, Striking Out Appeals, Procedural Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
B.R. Aggarwal (Suing in his capacity as executor of Late Lekraj Aggarwal)
Appellant
Munshiram & Company Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Competence of Appeal
Legal Issues
- 1 Whether the omission of a certified copy of the decree in the record of appeal renders the appeal incompetent.
Ratio Decidendi
The Court held that the omission of a certified copy of the decree from the record of appeal is a fatal defect under Rule 85(i)(h) of the Court of Appeal Rules. This rule is mandatory, and non-compliance renders the appeal incurably incompetent. As a result, the appeal was struck out with costs to the respondent.
Court Disposition
Appeal struck out as incompetent due to procedural defect.
Orders
- The appeal is struck out with costs.
Full Case Text
Judgment text and source record
18 paragraphs
IN THE COURT OF APPEAL AT NAIROBI (CORAM: GICHERU, TUNOI & LAKHA, JJ.A) CIVIL APPEAL NO. 59 OF 1991
BETWEEN
B.R. AGGARWAL Suing in his capacity as executor of
Late Lekraj Aggarwal..................................................APPELLANT
AND
MUNSHIRAM & COMPANY LIMITED....................RESPONDENT
(Appeal from the Judgment of the High Court of Kenya at Nairobi (Mr. Justice C.S. Pall) dated 17th October, 1990
in
CIVIL CASE NO.1804 OF 1985) *****************
RULING OF THE COURT
The record of appeal does not include a certified copy of the decree appealed against. This is in breach of the mandatory provision of Rule 85 (i)(h) of the Rules of this Court. It is a fatal omission and renders the record incurably incompetent. Accordingly, the appeal is struck out with costs.
Dated and delivered at Nairobi this 15th day of February, 1996.
J. E. GICHERU ............................ 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