[1999] KECA 7 (KLR)
The Court found that the record of appeal was fatally defective for failing to include a certified copy of the order appealed against and the originating Chamber Summons, and for being served out of time without leave of the court. These defects were deemed incurable under the Court of Appeal Rules and could not be...
Source-derived case information.
- Citation
- [1999] KECA 7 (KLR)
- Parties
- Appellant: The Pharmacy and Poisons Board; Respondent: Sipri Pharmaceuticals Limited; Respondent: Commissioner of Customs & Excise
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 87 of 1998
- Procedural Posture
- Civil Appeal / Application to Strike Out Appeal
- Outcome
- Appeal struck out as incompetent with costs to the respondent.
- Judges
- RO Kwach
- Legal Topics
- Appeal Striking Out, Record of Appeal Requirements, Court of Appeal Rules, Procedural Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
The Pharmacy and Poisons Board
Appellant
Sipri Pharmaceuticals Limited
Respondent
Commissioner of Customs & Excise
Respondent
Procedural Posture
Civil Appeal / Application to Strike Out Appeal
Legal Issues
- 1 Whether the appeal should be struck out for failure to comply with mandatory requirements of the Court of Appeal Rules.
- 2 Whether defects in the record of appeal, including missing documents and late service, are incurable.
Ratio Decidendi
The Court found that the record of appeal was fatally defective for failing to include a certified copy of the order appealed against and the originating Chamber Summons, and for being served out of time without leave of the court. These defects were deemed incurable under the Court of Appeal Rules and could not be remedied by filing a supplementary record. Consequently, the appeal was struck out as incompetent, with costs awarded to the respondent.
Court Disposition
Appeal struck out as incompetent with costs to the respondent.
Orders
- The appeal is struck out as incompetent.
- Costs of the appeal and the Notice of Motion awarded to the respondent.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT KISUMU
CIVIL APPEAL 87 OF 1998
THE PHARMACY AND POISONS BOA.................................................APPELLANT
AND
SIPRI PHARMACEUTICALS LIMITED........................................1ST RESPONDENT
COMMISSIONER OF CUSTOMS & EXCISE...............................2ND RESPONDENT
(Application to strike out the memorandum and record of appeal in Civil Appeal No.
87 of 1998 in an appeal from the ruling and order of the High Court of Kenya at Kisumu
(Wambilyangah, J.) dated 2nd December, 1997
in
H.C. MISC. C. NO. 101 OF 1997)
***********************
RULING OF THE COURT:
This is an application under rule 80 of the Court of Appeal Rules for an order striking out the appeal. The grounds upon which the order is sought are -
(1)That the record of appeal does not contain a certified copy of the order appealed against in breach of rule 85(1)(h) of the Court of Appeal Rules.
(2)That the Chamber Summons dated 6th August, 1997 which was the originating process has not been included - rule 85(1)(C).
(3)That the Record of Appeal has not been certified as correct as required by rule 85(5) of the Court of Appeal Rules.
(4)Record of Appeal was served on the respondent out of time without leave of the court being sought.
(5)Parts of the Record of Appeal are illegible in breach of rule 13(2) of the Court of Appeal Rules.
Mr. Mwenesi, for the respondent, has attempted to explain away these defects but some of these are serious defects which cannot be cured by merely filing a supplementary record of appeal.
In the result we agree with Mr. Wasuna that the defects except No. 3 and 5 above are incurable. The consequence of this is that the appeal is incompetent and it is accordingly struck out with costs to the respondent. The respondent will also have the costs of the Notice of Motion.
Dated and delivered at Kisumu this 25th day of November, 1999.
R.O. KWACH
.............
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