[2002] KECA 205 (KLR)
The Court held that the failure to include the ruling of Hayanga, J.—which was central to the appellant's grounds of appeal—rendered the record of appeal incompetent. The appellant was not entitled to re-argue matters already determined by the High Court without having appealed that specific ruling. As the primary...
Source-derived case information.
- Citation
- [2002] KECA 205 (KLR)
- Parties
- Appellant: Mansur Jiwani (Sued wrongly as T/a Computer City); Respondent: Ovidian Advertising & Design Ltd.
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 97 of 2001
- Procedural Posture
- Civil Appeal / Appeal Against High Court Ruling/order
- Outcome
- Appeal struck out as incompetent with costs to the respondent.
- Judges
- JE Gicheru
- Legal Topics
- Record of Appeal, Competency of Appeal, Affidavit Striking Out, Procedural Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mansur Jiwani (Sued wrongly as T/a Computer City)
Appellant
Ovidian Advertising & Design Ltd.
Respondent
Procedural Posture
Civil Appeal / Appeal Against High Court Ruling/order
Legal Issues
- 1 Whether the omission of the ruling by Hayanga, J. from the record renders the appeal incompetent.
- 2 Whether the appellant could re-argue matters already adjudicated upon without appealing the prior ruling.
Ratio Decidendi
The Court held that the failure to include the ruling of Hayanga, J.—which was central to the appellant's grounds of appeal—rendered the record of appeal incompetent. The appellant was not entitled to re-argue matters already determined by the High Court without having appealed that specific ruling. As the primary document was missing from the record, the appeal could not be properly considered and was therefore struck out with costs to the respondent.
Court Disposition
Appeal struck out as incompetent with costs to the respondent.
Orders
- The appeal is struck out.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
20 paragraphs
IN THE COURT OF APPEAL AT NAIROBI (CORAM: GICHERU, OMOLO & LAKHA, JJ.A.) CIVIL APPEAL NO. 97 OF 2001
BETWEEN
MANSUR JIWANI (Sued wrongly as T/a COMPUTER CITY ..................................... APPELLANT
AND
OVIDIAN ADVERTISING & DESIGN LTD. ..................... RESPONDENT
(Appeal from the Ruling and Order of the High Court of Kenya at Milimani Commercial Courts (Justice Moijo Ole Keiwua) dated 15th February, 1999 in H.C.C.C. NO. 459 OF 1997) ***************
RULING OF THE COURT
Mr. Ngunjiri, for the appellant, has complained that parts of the affidavit should have been struck out. But this matter was considered and canvassed before Hayanga, J. who refused to strike the same out in a ruling which has not been included in the record. Mr. Ngunjiri did not appeal against that ruling: no notice of appeal was given with regard to that and freely argued although already adjudicated upon. They were matters not open to him and the ruling of Hayanga, J. should have been included as it was a primary document. Not having been included it renders this record of appeal incompetent. Accordingly, the appeal is struck out with costs to the respondent.
Dated and delivered at Nairobi this 6th day of May, 2002.
J.E. GICHERU
...................
JUDGE OF APPEAL
R.S.C. OMOLO
...................
JUDGE OF APPEAL
A.A. LAKHA
...................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR