[2001] KECA 207 (KLR)
The Court held that the appeal was incurably incompetent because the appellant failed to include the ruling appealed from in the record of appeal, as mandated by rule 85(1)(g) of the Court of Appeal Rules. The omission could not be rectified by filing a supplementary record due to the express prohibition in rule...
Source-derived case information.
- Citation
- [2001] KECA 207 (KLR)
- Parties
- Appellant: Fortune Finance Ltd; Respondent: Philip K. Matu; Respondent: Josphat Maina Ikinu; Respondent: Hannah Njeri Matu
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 89 of 2000
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection and Motion to Strike Out Appeal
- Outcome
- Appeal and motion struck out as incompetent.
- Legal Topics
- Appeal Incompetence, Record of Appeal Requirements, Leave to Appeal, Striking Out Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fortune Finance Ltd
Appellant
Philip K. Matu
Respondent
Josphat Maina Ikinu
Respondent
Hannah Njeri Matu
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection and Motion to Strike Out Appeal
Legal Issues
- 1 Whether the appeal is competent in the absence of the ruling appealed from in the record of appeal.
- 2 Whether the respondent's motion to strike out the appeal is itself competent without leave to proceed.
Ratio Decidendi
The Court held that the appeal was incurably incompetent because the appellant failed to include the ruling appealed from in the record of appeal, as mandated by rule 85(1)(g) of the Court of Appeal Rules. The omission could not be rectified by filing a supplementary record due to the express prohibition in rule 85(2A). Additionally, the motion by the respondent to strike out the appeal was also incompetent because the appellant, being in liquidation, had not obtained the necessary leave to proceed with the appeal. Consequently, both the appeal and the motion were struck out, with no order as to costs.
Court Disposition
Appeal and motion struck out as incompetent.
Orders
- The appeal is struck out as incompetent.
- The motion to strike out the appeal is also struck out as incompetent.
Full Case Text
Judgment text and source record
17 paragraphs
IN THE COURT OF APPEAL AT NAIROBI (CORAM: OMOLO, BOSIRE & O'KUBASU JJ.A) CIVIL APPEAL NO. 89 OF 2000 BETWEEN
FORTUNE FINANCE LTD ....................................APPELLANT
AND
PHILIP K. MATU ) JOSPHAT MAINA IKINU ) HANNAH NJERI MATU )................................RESPONDENTS
(Appeal from the ruling and order of (Justice Onyango Otieno) at Nairobi Milimani Commercial Courts on 12th October 1999
in
H.C.C.C. No.815 of 1999) ****************
RULING OF THE COURT
The present appeal is from the order of the superior court made on 12th October, 1999 in itsCivil Case No.815 of 1999. While the certified order of that decision is included in the record of appeal, the ruling giving rise to that order is not part of the record of appeal. That is clearly in breach of the mandatory provisions of rule 85(1)(g) of the Court of Appeal Rules. The copy of the ruling may not be brought on record by a supplementary record of appeal in view of the clear provisions of rule 85(2A) of the aforesaid rules. The appeal is therefore incurably incompetent.
Likewise the motion before us by the respondent seeking an order to strike out the appeal as incompetent is also incompetent as the applicant Fortune Finance Co. Ltd (in liquidation), did not obtain leave to proceed with this appeal.
In the result we strike out both the appeal and the motion but with no order as to costs.
Dated and delivered at Nairobi this 21st day of March, 2001.
R.S.C. OMOLO ................... JUDGE OF APPEAL
S.E.O. BOSIRE ..................... JUDGE OF APPEAL
E. O'KUBASU .................... JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR