[2010] KECA 416 (KLR)
The Court held that although the supplementary record of appeal was bulky and included all documents rather than only the missing or illegible parts, this did not offend the rules of the Court of Appeal. The Court emphasized the overriding objective of civil litigation, which is to facilitate the just and...
Source-derived case information.
- Citation
- [2010] KECA 416 (KLR)
- Parties
- Appellant: Fred C. Fedha & Peter W. Fedha (as personal representatives of the estate of Edwin Washiko Fedha); Respondent: Edwine E. Asava Majani
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 84 of 2004
- Procedural Posture
- Civil Appeal / Ruling on Application to Strike Out Supplementary Record of Appeal
- Outcome
- application dismissed
- Legal Topics
- Supplementary Record of Appeal, Appellate Practice, Court Rules Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fred C. Fedha & Peter W. Fedha (as personal representatives of the estate of Edwin Washiko Fedha)
Appellant
Edwine E. Asava Majani
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Strike Out Supplementary Record of Appeal
Legal Issues
- 1 Whether the filing of a complete supplementary record of appeal, instead of only the missing or illegible parts, contravened the court's order and the rules of the Court of Appeal.
- 2 Whether the notice of appeal filed on 8th March, 2004 should be deemed as withdrawn.
Ratio Decidendi
The Court held that although the supplementary record of appeal was bulky and included all documents rather than only the missing or illegible parts, this did not offend the rules of the Court of Appeal. The Court emphasized the overriding objective of civil litigation, which is to facilitate the just and expeditious resolution of disputes. The Court found no merit in the application to strike out the supplementary record or to deem the notice of appeal withdrawn, and accordingly dismissed the application.
Court Disposition
application dismissed
Orders
- The notice of motion dated 6th April, 2009 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
31 paragraphs
IN THE COURT OF APPEAL OF KENYA
AT ELDORET
CIVIL APPEAL 84 OF 2004
FRED C. FEDHA & PETER W. FEDHA
(being the personal representative of the estate of
EDWIN WASHIKO FEDHA…………...APPELLANT/RESPONDENT
AND
EDWINE E. ASAVA MAJANI ………….RESPONDENT/APPLICANT
(Application to strike supplementary record of appeal from a judgment of the High Court of Kenya at Eldoret (Nambuye, J.) dated 13th October, 1999
in
H.C.C.C. NO. 7 OF 1996)
***********************
RULING OF THE COURT
The respondent has moved this Court under rules 80 and 82of this Court’s Rules, seeking an order that the supplementary record filed on 6th March, 2009, on the only ground that the respondent has filed a whole record of appeal instead of only parts of the record.
The respondent was granted leave on 25th February, 2009 to file a supplementary record because the record of appeal had some pages which were not easily legible. The respondent in his counsel’s judgment decided to include virtually all documents in the record of appeal in the supplementary record. Mr. Keyonzo for the applicant has submitted that by including all the documents in the record of appeal, in a supplementary record of appeal, the respondent did not comply with the court order aforesaid.
We have considered the application and in view of the provisions of section 3A of the Appellate Jurisdiction Act we consider that this motion is without merit. The supplementary record of appeal though bulky does not offend the rules of this Court and considering the overriding objective of civil litigation contained in the aforesaid section, we are inclined to disallow the prayer relating to the supplementary record of appeal.
As regards the second prayer in the aforesaid motion, in which the applicant seeks an order deeming the notice of appeal filed on 8th March, 2004 as having been withdrawn, for the same reason we gave earlier this prayer also fails.
Accordingly the notice of motion dated 6th April, 2009 fails and is dismissed but with no order as to costs.
Dated and delivered at Eldoret this 18th day of February, 2010.
S.E.O. BOSIRE
……………………..
JUDGE OF APPEAL
E.M. GITHINJI
……………………
JUDGE OF APPEAL
J.W. ONYANGO OTIENO
………………………….
JUDGE OF APPEAL
I certify that this is
a true copy of the original.
DEPUTY REGISTRAR