[2001] KECA 302 (KLR)
The Court held that the omission of an annexture of an affidavit from the record of appeal constituted a breach of the mandatory provisions of rule 85(1)(f) of the Court of Appeal Rules. This omission was deemed incurable and rendered the entire appeal incompetent. Consequently, the Court allowed the application to...
Source-derived case information.
- Citation
- [2001] KECA 302 (KLR)
- Parties
- Appellant: Peter Njeru Mugo; Respondent: Jimba Credit Corporation Ltd; Respondent: George Gikubu Mbuthia
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 250 of 2000
- Procedural Posture
- Civil Appeal / Application to Strike Out Appeal
- Outcome
- Appeal struck out as incompetent.
- Legal Topics
- Record of Appeal, Striking Out Appeal, Procedural Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Njeru Mugo
Appellant
Jimba Credit Corporation Ltd
Respondent
George Gikubu Mbuthia
Respondent
Procedural Posture
Civil Appeal / Application to Strike Out Appeal
Legal Issues
- 1 Whether the omission of an annexture of an affidavit from the record of appeal renders the appeal incompetent under rule 85(1)(f) of the Court of Appeal Rules.
Ratio Decidendi
The Court held that the omission of an annexture of an affidavit from the record of appeal constituted a breach of the mandatory provisions of rule 85(1)(f) of the Court of Appeal Rules. This omission was deemed incurable and rendered the entire appeal incompetent. Consequently, the Court allowed the application to strike out the appeal, emphasizing that strict compliance with procedural rules governing the contents of the record of appeal is essential. Failure to include all mandatory documents as specified by the rules leaves the Court with no discretion but to strike out the appeal as incompetent.
Court Disposition
Appeal struck out as incompetent.
Orders
- The appeal is struck out with costs, including the costs of the motion.
Full Case Text
Judgment text and source record
14 paragraphs
IN THE COURT OF APPEAL AT NAIROBI (CORAM: OMOLO, LAKHA & KEIWUA, JJ.A.) CIVIL APPEAL (APPLICATION) NO. 250 OF 2000
BETWEEN
PETER NJERU MUGO ........................................................APPELLANT
AND
JIMBA CREDIT CORPORATION LTD..................... 1STRESPONDENT
GEORGE GIKUBU MBUTHIA ................................... 2NDRESPONDENT
RULING OF THE COURT
This is an application under rule 80 of the Rules of this Court to strike out the appeal on the ground that an annexture of an Affidavit, an exhibit, was excluded from the record of appeal in breach of the mandatory provisions of rule 85(1)(f) of the Rules. The omission is incurable and renders the record defective and the appeal incompetent.
Accordingly, the motion succeeds. The appeal is struck out with costs including the costs of the motion.
Dated and delivered at Nairobi this 4th day of October, 2001.
R.S.C. OMOLO .................... JUDGE OF APPEAL
A.A. LAKHA ....................... JUDGE OF APPEAL
M. KEIWUA ........................ JUDGE OF APPEAL
I certify that this is a true copy of the original. DEPUTY REGISTRAR.