[1998] KECA 228 (KLR)
The Court found that the appeal was filed well outside the prescribed time without any leave for extension, making it incompetent. Additionally, the failure to include all exhibits produced at trial in the record of appeal constituted a breach of the mandatory provisions of Rule 85(1)(h) of the Court of Appeal...
Source-derived case information.
- Citation
- [1998] KECA 228 (KLR)
- Parties
- Appellant: Elegant Service Station & Garage Limited; Respondent: Kobil Petroleum Limited; Respondent: Excelathon Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 293 of 1997
- Procedural Posture
- Civil Appeal / Application to Strike Out Appeal
- Outcome
- appeal struck out as incompetent
- Judges
- AM Akiwumi
- Legal Topics
- Appeal Striking Out, Record of Appeal Requirements, Time Limits for Appeals
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elegant Service Station & Garage Limited
Appellant
Kobil Petroleum Limited
Respondent
Excelathon Limited
Respondent
Procedural Posture
Civil Appeal / Application to Strike Out Appeal
Legal Issues
- 1 Whether the appeal should be struck out for being filed out of time without leave.
- 2 Whether the omission of exhibits from the record of appeal renders the appeal incompetent.
Ratio Decidendi
The Court found that the appeal was filed well outside the prescribed time without any leave for extension, making it incompetent. Additionally, the failure to include all exhibits produced at trial in the record of appeal constituted a breach of the mandatory provisions of Rule 85(1)(h) of the Court of Appeal Rules. This omission was deemed incurable and fatal, rendering the appeal incompetent. Consequently, the Court struck out the appeal with costs, including the costs of the application.
Court Disposition
appeal struck out as incompetent
Orders
- The appeal is struck out with costs, including the costs of the application.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: AKIWUMI, TUNOI & LAKHA, JJ.A.)
CIVIL APPEAL NO. 293 OF 1997
BETWEEN
ELEGANT SERVICE STATION &
GARAGE LIMITED .......................................APPELLANT
AND
KOBIL PETROLEUM LIMITED
EXCELATHON LIMITED ..................................RESPONDENTS
(An Appeal from the Judgment of the High Court of Kenya at Nairobi (Justice J.M. Khamoni) dated 14th day of July, 1997
in
H.C.C.C. NO. 1501 OF 1989)
*****************
RULING OF THE COURT
This is an application to strike out the appeal under Rule 80 of the Rules of this Court.
Under the certificate of delay the copies of the proceedings were ready on 7th October, 1997 but the appeal was not filed until 19th December, 1997 well out of the prescribed time. There is no leave for any extension of time.
Secondly, the record does not contain all the exhibits produced at the trial. This is in breach of the mandatory provisions of Rule 85(1)(h) of the Rules and this is an incurable and fatal omission rendering the appeal incompetent.
Accordingly, the appeal is struck out with costs including the costs of the application.
Made and delivered at Nairobi this 19th day of May, 1998.
A.M. AKIWUMI
..................
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