[2001] KECA 304 (KLR)
The Court held that the omission of a certified copy of the order appealed from is a fatal defect under rule 85(2A) of the Court of Appeal Rules. Since the missing document is a primary document and cannot be introduced by way of a supplementary record of appeal, the appeal is incurably incompetent. The concession...
Source-derived case information.
- Citation
- [2001] KECA 304 (KLR)
- Parties
- Appellant: Godfrey Ngumo Nyaga; Appellant: United Kenya Distributors Ltd; Respondent: Kenya Commercial Bank Ltd
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 191 of 2000
- Procedural Posture
- Civil Appeal / Application to Strike Out Appeal
- Outcome
- appeal struck out as incompetent
- Legal Topics
- Appeal Record Requirements, Striking Out Appeal, Court of Appeal Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Godfrey Ngumo Nyaga
Appellant
United Kenya Distributors Ltd
Appellant
Kenya Commercial Bank Ltd
Respondent
Procedural Posture
Civil Appeal / Application to Strike Out Appeal
Legal Issues
- 1 Whether the omission of a certified copy of the order appealed from renders the appeal incompetent.
- 2 Whether the omitted document can be introduced by way of a supplementary record of appeal under rule 85(2A) of the Court of Appeal Rules.
Ratio Decidendi
The Court held that the omission of a certified copy of the order appealed from is a fatal defect under rule 85(2A) of the Court of Appeal Rules. Since the missing document is a primary document and cannot be introduced by way of a supplementary record of appeal, the appeal is incurably incompetent. The concession by the first appellant confirmed the omission, and the Court found no basis to allow the appeal to proceed. Consequently, the appeal was struck out with costs to the respondent, including the costs of the application.
Court Disposition
appeal struck out as incompetent
Orders
- The appeal is struck out with costs to the respondent, including the costs of the application.
Full Case Text
Judgment text and source record
17 paragraphs
IN THE COURT OF APPEAL AT NAIROBI (CORAM: LAKHA, BOSIRE & OWUOR JJ.A) CIVIL APPEAL NO. 191 OF 2000
BETWEEN
GODFFREY NGUMO NYAGA ........................................ IST APPELLANT
UNITED KENYA DISTRIBUTORS LTD ...................... 2ND APPELLANT
AND
KENYA COMMERCIAL BANK LTD ............................... RESPONDENT
(Being an appeal from the ruling of the High Court of Kenya (Hon. Mr. Justice P.J.S. Hewett) dated 14th July, 2000
in
H.C.C.C. No.4539 of 1992 *******************
RULING OF THE COURT
The respondent, Kenya Commercial Bank Limited, has applied that this appeal be struck out on the ground that the record of appeal omits a primary document to wit a certified copy of the order appealed from. Mr. Godfrey Ngumo Nyaga, the first appellant, and a director in the 2nd appellant, concedes that fact. In view of the fact that under rule 85(2A) of the Court of Appeal Rules, the omitted document cannot be brought on record by way of a supplementary record of appeal, it follows that this appeal is incurably incompetent.
In the result it must be and is hereby struck out with costs including the costs of the application to the respondent(Kenya Commercial Bank Ltd).
Dated and delivered this 15th day of March, 2001
A.A. LAKHA ............................. JUDGE OF APPEAL
S.E.O. BOSIRE ............................. JUDGE OF APPEAL
E. OWUOR ............................ JUDGE OF APPEAL
I certify that this is a true copy of the original. DEPUTY REGISTRAR