[2001] KECA 190 (KLR)
The Court found that the appellant's record of appeal was defective due to illegible pages and the omission of the application or supporting affidavit for the amendment of a pleading, both of which are mandatory under the Court of Appeal Rules. The omission was deemed incurable, and as a result, the appeal was...
Source-derived case information.
- Citation
- [2001] KECA 190 (KLR)
- Parties
- Appellant: Nicholas Mulaya; Respondent: Joel Kisia; Respondent: Inter Freight (K) Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 90 of 1999
- Procedural Posture
- Civil Appeal / Ruling on Competence of Appeal
- Outcome
- Appeal struck out as incompetent.
- Legal Topics
- Appeal Record Completeness, Procedural Irregularities, Striking Out Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nicholas Mulaya
Appellant
Joel Kisia
Respondent
Inter Freight (K) Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Competence of Appeal
Legal Issues
- 1 Whether the appeal is competent in light of non-compliance with the Court of Appeal Rules regarding the record of appeal.
Ratio Decidendi
The Court found that the appellant's record of appeal was defective due to illegible pages and the omission of the application or supporting affidavit for the amendment of a pleading, both of which are mandatory under the Court of Appeal Rules. The omission was deemed incurable, and as a result, the appeal was incompetent. The Court accordingly struck out the appeal, emphasizing strict adherence to procedural requirements for the validity of appeals.
Court Disposition
Appeal struck out as incompetent.
Orders
- The appeal is struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL
AT KISUMU
CORAM: GICHERU, TUNOI & LAKHA, JJ.A.
CIVIL APPEAL NO. 90 OF 1999 BETWEEN
NICHOLAS MULAYA ...............................................APPELLANT
AND
JOEL KISIA
INTER FREIGHT (K) LIMITED .............................RESPONDENTS
(An appeal from judgment of the High Court of Kenya at
Kakamega (Tanui J) dated 19th November, 1998
in
KAK.H.C.C.C. NO. 178 OF 1991)
******************** RULING OF THE COURT
Mr Otieno for the appellant concedes and, rightly so, that several pages in his record of appeal are not legible in breach of rule 13 of the Rules of the Court . More importantly, however, the record does not include the application or supporting affidavit for the amendment of a pleading in breach of rule 85 (1)(c) of the rules. This omission is incurable and renders the appeal incompetent. It is accordingly struck out but with no order as to costs.
Dated and delivered at Kisumu this 21st day of March, 2001.
J. E. GICHERU
---------------
JUDGE OF APPEAL
P. K. TUNOI
---------------
JUDGE OF APPEAL
A. A. LAKHA
---------------
JUDGE OF APPEAL
I certify that this is a true copy of the original. DEPUTY REGISTRAR