[1998] KECA 247 (KLR)
The Court held that the omission of exhibits from the record of appeal is a breach of the mandatory provisions of Rule 85(1)(f) of the Court of Appeal Rules. The rule does not provide for exceptions based on relevance or availability unless a specific direction is made under Rule 85(3), which was not the case here....
Source-derived case information.
- Citation
- [1998] KECA 247 (KLR)
- Parties
- Appellant: Edith Wagithi Chiira; Respondent: Rebecca Wangui Gichuhi
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 24 of 1997
- Procedural Posture
- Civil Appeal / Application to Strike Out Appeal
- Outcome
- Appeal struck out as incompetent with costs to the respondent, including costs of the application.
- Judges
- RO Kwach
- Legal Topics
- Record of Appeal, Mandatory Procedural Requirements, Striking Out Appeals
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edith Wagithi Chiira
Appellant
Rebecca Wangui Gichuhi
Respondent
Procedural Posture
Civil Appeal / Application to Strike Out Appeal
Legal Issues
- 1 Whether failure to include exhibits in the record of appeal renders the appeal incompetent under Rule 85(1)(f) of the Court of Appeal Rules.
Ratio Decidendi
The Court held that the omission of exhibits from the record of appeal is a breach of the mandatory provisions of Rule 85(1)(f) of the Court of Appeal Rules. The rule does not provide for exceptions based on relevance or availability unless a specific direction is made under Rule 85(3), which was not the case here. Therefore, the appeal was deemed incompetent and was struck out with costs.
Court Disposition
Appeal struck out as incompetent with costs to the respondent, including costs of the application.
Orders
- The appeal is struck out as incompetent.
- Costs of the appeal and the application filed on December 16, 1997, are awarded to the respondent.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: KWACH, LAKHA & BOSIRE, JJ.A.)
CIVIL APPEAL NO. 24 OF 1997
BETWEEN
EDITH WAGITHI CHIIRA .................................. APPELLANT
AND
REBECCA WANGUI GICHUHI ................................ RESPONDENT
(Appeal from the Ruling of the High Court of Kenya at Nairobi (Justice Githinji) dated the 26th day of April, 1996 in H.C.C.SUC.C. NO. 467 OF 1991)
****************
RULING OF THE COURT
Hon. Martha Karua has moved the Court to strike out the appeal on the ground that the exhibits produced in the superior court have not been included in the record of appeal filed. This omission is in breach of the mandatory provisions of Rule 85(1)(f) of the Rules of this Court and renders the appeal incurably defective and incompetent.
Mr. Kamonde, however, submits that the exhibits were not available or relevant or vital. This does not supply any basis for the omission from the record asRule 85(1)(f) is mandatory and makes no exception for such cases. There is no direction made under the provisions of sub-rule (3)of Rule 85 for such documents to be excluded.
Accordingly, it follows that the appeal is incompetent and it is struck out with costs including the costs of the application filed on December 16, 1997.
Made and delivered at Nairobi this 15th day of January, 1998.
R.O. KWACH
..................
JUDGE OF APPEAL
A.A. LAKHA
..................
JUDGE OF APPEAL
S.E.O. BOSIRE
..................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR