[2001] KECA 256 (KLR)
The Court held that the missing page of the Chamber Summons was part of the pleadings as defined under Rule 85(1)(c) of the Court of Appeal Rules. Rule 85(2A) only permits the inclusion of omitted documents in a supplementary record of appeal if those documents fall under paragraphs (a), (b), (e), (i), or (k) of...
Source-derived case information.
- Citation
- [2001] KECA 256 (KLR)
- Parties
- Appellant: Crescent Construction Co. Ltd; Respondent: Delphis Bank Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 33 of 1999
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection/strike Out Application
- Outcome
- appeal struck out as incompetent
- Legal Topics
- Appeal Incompetence, Record of Appeal Requirements, Striking Out Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Crescent Construction Co. Ltd
Appellant
Delphis Bank Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection/strike Out Application
Legal Issues
- 1 Whether omission of a page of the Chamber Summons, being part of the pleadings, from the record of appeal renders the appeal incompetent.
- 2 Whether such omission can be cured by filing a supplementary record of appeal under Rule 85(2A) of the Court of Appeal Rules.
Ratio Decidendi
The Court held that the missing page of the Chamber Summons was part of the pleadings as defined under Rule 85(1)(c) of the Court of Appeal Rules. Rule 85(2A) only permits the inclusion of omitted documents in a supplementary record of appeal if those documents fall under paragraphs (a), (b), (e), (i), or (k) of Rule 85(1), which does not include pleadings. Therefore, the omission of the page could not be cured by filing a supplementary record, rendering the appeal incompetent. The appeal was accordingly struck out, regardless of the respondent's position on the filing of a supplementary record.
Court Disposition
appeal struck out as incompetent
Orders
- The appeal is struck out.
- No order as to costs for the respondent.
Full Case Text
Judgment text and source record
18 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
CORAM: GICHERU, AKIWUMI & TUNOI, JJ.A.)
CIVIL APPEAL NO. 33 OF 1999
BETWEEN
CRESCENT CONSTRUCTION CO. LTD ......................... APPELLANT
AND
DELPHIS BANK LIMITED ............................................. RESPONDENT
Appeal from a Ruling and Order of the High Court of Kenya at Nairobi, Milimani Commercial Court (Justice Keiwua) dated 15th day of December, 1998
in
H.C.C.C. NO. 4082 OF 1994) ***********
RULING OF THE COURT
The second page of the Chamber Summons filed by the Respondent to strike out the Appellant's suit in the superior court, is part of the pleadings in the suit in that court and as such, it is not one of those documents which, when omitted from the record of appeal as in this case, may under Rule 85(2A), with leave of this court, be included in a supplementary record of appeal. The documents referred to in Rule 85(2A) are only those that fall under paragraphs (a), (b), (e), (i), or (k) of Rule 85(1) which does not include pleadings that are referred to in paragraph (c) of Rule 85(1).
In the result, the present appeal is incompetent no matter whether the Respondent does not object just to the filling of a supplementary record of appeal to incorporate the missing page of the Chamber Summons. The appeal is hereby struck out, but obviously with no costs for the Respondent.
Dated and delivered at Nairobi this 19th day of February, 2001.
J. E. GICHERU ............................ JUDGE OF APPEALA. M. AKIWUMI ............................... JUDGE OF APPEAL
P. K. TUNOI ............................. JUDGE OF APPEAL
I certify that this is a true copy of the original. DEPUTY REGISTRAR.