[1999] KECA 169 (KLR)
The Court found that the order included in the appeal record did not reflect the full decision of the High Court, as paragraph (c) of the ruling was omitted. This omission was material and rendered the record incurably defective. Under Rule 80 of the Court of Appeal Rules, such a defect makes the appeal incompetent....
Source-derived case information.
- Citation
- [1999] KECA 169 (KLR)
- Parties
- Appellant: Malindi Air Services; Appellant: John M. Cleave; Respondent: Halima Abdinoor Hassan
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 152 of 1999
- Procedural Posture
- Civil Appeal / Application to Strike Out Appeal
- Outcome
- Appeal struck out as incompetent due to defective record.
- Judges
- RO Kwach
- Legal Topics
- Appeal Record Defects, Striking Out Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Malindi Air Services
Appellant
John M. Cleave
Appellant
Halima Abdinoor Hassan
Respondent
Procedural Posture
Civil Appeal / Application to Strike Out Appeal
Legal Issues
- 1 Whether the appeal record is incurably defective due to omission of a part of the High Court's ruling in the order included in the record.
- 2 Whether such defect renders the appeal incompetent and liable to be struck out.
Ratio Decidendi
The Court found that the order included in the appeal record did not reflect the full decision of the High Court, as paragraph (c) of the ruling was omitted. This omission was material and rendered the record incurably defective. Under Rule 80 of the Court of Appeal Rules, such a defect makes the appeal incompetent. Consequently, the Court struck out the appeal with costs, including the costs of the Notice of Motion.
Court Disposition
Appeal struck out as incompetent due to defective record.
Orders
- Civil Appeal No. 152 of 1999 is struck out with costs, including the costs of the Notice of Motion.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAIROBI (CORAM: KWACH, LAKHA & BOSIRE, JJ.A.) CIVIL APPEAL NO. 152 OF 1999 BETWEEN
MALINDI AIR SERVICES ................................ 1ST APPELLANT JOHN M. CLEAVE ...................................... 2ND APPELLANT AND HALIMA ABDINOOR HASSAN .............................. RESPONDENT
(Appeal from the Ruling of the High Court of Kenya at Nairobi given by (Hon. Justice Mbogholi Msagha) on 6th August, 1998
in
H.C.C.C. NO. 1509 OF 1998) ************** RULING OF THE COURT
This is an application under rule 80 of the Rules of this Court to strike out Civil Appeal No. 152 of 1999 on the main ground that the Order included in the record is not the Order of the Court since para (c) of the Ruling is not reflected in the Order included in the record. Accordingly, the Order does not reflect the decision of the Court. The record, is therefore, incurably defective and renders the appeal incompetent. It is, therefore, struck out with costs including the costs of the Notice of Motion.
Made and delivered at Nairobi this 8th day of December, 1999.
R.O. KWACH
.............
JUDGE OF APPEAL
A.A. LAKHA
.............
JUDGE OF APPEAL
S.E.O. BOSIRE
...............
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR