[1998] KECA 201 (KLR)
The Court of Appeal held that the omission of the document marked as Ex MHI from the record of appeal was a breach of the mandatory provisions of rule 85(1)(f) of the Court of Appeal Rules. The document was considered vital to the proper adjudication of the appeal, and its absence rendered the appeal incurably...
Source-derived case information.
- Citation
- [1998] KECA 201 (KLR)
- Parties
- Appellant: Corporate Insurance Company Limited; Respondent: Hamid Chemicals Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 54 of 1997
- Procedural Posture
- Civil Appeal / Application to Strike Out Appeal
- Outcome
- Appeal struck out as incompetent.
- Judges
- JE Gicheru
- Legal Topics
- Appeal Record Requirements, Striking Out Appeal, Court of Appeal Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Corporate Insurance Company Limited
Appellant
Hamid Chemicals Limited
Respondent
Procedural Posture
Civil Appeal / Application to Strike Out Appeal
Legal Issues
- 1 Whether the omission of a vital document (Ex MHI) from the record of appeal renders the appeal incompetent under rule 85(1)(f) of the Court of Appeal Rules.
- 2 Whether the omitted document can be included in a supplementary record of appeal under rule 85(2A).
Ratio Decidendi
The Court of Appeal held that the omission of the document marked as Ex MHI from the record of appeal was a breach of the mandatory provisions of rule 85(1)(f) of the Court of Appeal Rules. The document was considered vital to the proper adjudication of the appeal, and its absence rendered the appeal incurably defective. The court further held that, pursuant to rule 85(2A), the document could not be included in a supplementary record of appeal. Consequently, the appeal was struck out as incompetent.
Court Disposition
Appeal struck out as incompetent.
Orders
- The appeal is struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: GICHERU, TUNOI & LAKHA, JJ.A.)
CIVIL APPEAL NO. 54 OF 1997
BETWEEN
CORPORATE INSURANCE COMPANY LIMITED ...................APPELLANT
AND
HAMID CHEMICALS LIMITED ...............................RESPONDENT
(Appeal from the Judgment and Decree of the High Court of Kenya at Nairobi (Justice Pall) dated 16th February, 1993 in
H.C.C.C. NO. 1824 OF 1987)
****************
RULING OF THE COURT
Mr. Gautama for the Respondent has applied to strike out the appeal as incompetent since the record does not include a document produced as Ex MHI and referred to at p. 19 of the record, Mr. Gautama relies on it as he did in the superior court. The witness was cross-examined on it and we are satisfied that the document is vital to the proper adjudication of this appeal. Its omission from the record, we are satisfied, is in breach of the mandatory provisions of rule 85(1)(f) of the Rules of this Court. The defeat is fatal and renders the appeal incurably defective as this document, in view of the provisions of rule 85(2A), cannot be included in a Ascucpoprldeimnegnltya,r y irte cfoorldl oowfs aptpheaatl .t he appeal must be as it hereby is struck out but with no order as to costs.
Dated and delivered at Nairobi this 9th day of July, 1998.
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