[2008] KECA 17 (KLR)
The Court held that since the appellant conceded the record of appeal did not include some of the exhibits produced before the trial court, and given that rule 85(2A) of the Court of Appeal Rules prohibits introducing such documents by way of a supplementary record, the record of appeal was incurably defective....
Source-derived case information.
- Citation
- [2008] KECA 17 (KLR)
- Parties
- Applicant: Kenya Commercial Finance Company Limited; Respondent: Richard Akwesera Onditi
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 157 of 2008
- Procedural Posture
- Civil Appeal / Application to Strike Out Appeal
- Outcome
- appeal struck out as incompetent
- Legal Topics
- Appeal Striking Out, Record of Appeal Defects, Court of Appeal Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Kenya Commercial Finance Company Limited
Applicant
Richard Akwesera Onditi
Respondent
Procedural Posture
Civil Appeal / Application to Strike Out Appeal
Legal Issues
- 1 Whether the appeal should be struck out for failure to include all exhibits produced before the trial court in the record of appeal.
- 2 Whether omitted documents can be introduced by way of a supplementary record of appeal under the Court of Appeal Rules.
Ratio Decidendi
The Court held that since the appellant conceded the record of appeal did not include some of the exhibits produced before the trial court, and given that rule 85(2A) of the Court of Appeal Rules prohibits introducing such documents by way of a supplementary record, the record of appeal was incurably defective. Consequently, the appeal was incompetent and had to be struck out.
Court Disposition
appeal struck out as incompetent
Orders
- The appeal is struck out as being incompetent.
- No order as to costs of the struck out appeal and the motion.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL OF KENYA AT KISUMU
CIVIL APPEAL APPLI 157 OF 2008
KENYA COMMERCIAL FINANCE CO. LTD.........APPLICANT/RESPONDENT
AND
RICHARD AKWESERA ONDITI….............….……RESPONDENT/APPELLANT
(Application to strike out Civil Appeal No. 157 of 2008 being appeal against the judgment and decree of the High Court of Kenya at Kakamega (Tanui, J) dated 18th September, 2001
In
H.C.C.C. NO. 65 OF 1993)
***********
RULING OF THE COURT
Before us is a motion brought under rule 80 of the Court of Appeal Rules for an order striking out the record of appeal on, amongst other grounds, that the record of appeal does not include some of the exhibits produced before the trial court. The applicant is KENYA COMMERCIAL FINANCE COMPANY LIMITED,the respondent in the appeal. The respondent in the application who is the appellant in the appeal is RICHARD AKWESERA ONDITI. As the appellant concedes that some of the documentary exhibits which were produced before the trial court are not part of the record of appeal, and those documents may not be brought in by way of a supplementary record of appeal, in view of the provisions of rule 85(2A) of this Court’s Rules, it follows that this record of appeal is incurably defective. In the circumstances the motion dated 18th August, 2008 and filed on the same date is allowed with the result that this appeal is struck out as being incompetent. We however make no order as to costs of the struck out appeal and the motion.
DATED and DELIVERED at KISUMU this 5th day of DECEMBER, 2008.
R.S.C. OMOLO
…………………………….
JUDGE OF APPEAL
S.E.O. BOSIRE
…………………….………..
JUDGE OF APPEAL
J.W. ONYANGO OTIENO
…………………..………………
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR