[1996] KECA 90 (KLR)
The Court held that non-compliance with Order 20 Rule 7 of the Civil Procedure Rules, specifically the failure to allow the respondent seven days to approve the draft order, does not in itself render the appeal incompetent unless the respondent demonstrates prejudice. In this case, the respondent conceded that no...
Source-derived case information.
- Citation
- [1996] KECA 90 (KLR)
- Parties
- Appellant: Shabbir Esmail; Respondent: Kenya Duty Free Complex
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 9 of 1994
- Procedural Posture
- Civil Appeal / Ruling on Notice of Motion to Strike Out Appeal
- Outcome
- Application to strike out the appeal dismissed. Leave granted to file supplementary record of appeal within 30 days. Appeal stood over generally. Costs in the appeal.
- Judges
- RO Kwach, GS Pall
- Legal Topics
- Draft Order Approval, Record of Appeal Completeness, Non Compliance With Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Shabbir Esmail
Appellant
Kenya Duty Free Complex
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice of Motion to Strike Out Appeal
Legal Issues
- 1 Whether non-compliance with Order 20 Rule 7 of the Civil Procedure Rules renders the appeal incompetent.
- 2 Whether the incompleteness of the record of appeal is fatal to the appeal.
Ratio Decidendi
The Court held that non-compliance with Order 20 Rule 7 of the Civil Procedure Rules, specifically the failure to allow the respondent seven days to approve the draft order, does not in itself render the appeal incompetent unless the respondent demonstrates prejudice. In this case, the respondent conceded that no prejudice was suffered. Regarding the incomplete record of appeal, the Court found that the applicant had the opportunity to file a supplementary record under Rule 89 but failed to do so. The Court therefore dismissed the application to strike out the appeal, granted leave to the appellant to file a supplementary record within 30 days, and stood over the appeal generally. The...
Court Disposition
Application to strike out the appeal dismissed. Leave granted to file supplementary record of appeal within 30 days. Appeal stood over generally. Costs in the appeal.
Orders
- Application to strike out the appeal is dismissed.
- Appellant granted leave to file supplementary record of appeal including all proceedings and affidavits within 30 days.
Full Case Text
Judgment text and source record
29 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
CIVIL APPEAL NO. 9 OF 1994
SHABBIR ESMAIL…………...……………………………..APPELANT
AND
KENYA DUTY FREE COMPLEX…………….…..……..RESPONDENT
(Being an appeal from the Ruling of the High Court of Kenya at Nairobi (Justice Mbito)
dated 11th February, 1993
in
H.C.C.C. NO. 3187 OF 1992)
************************
RULING OF THE COURT
By this Notice of motion the Respondent has sought that the appeal be struck out on the ground that the Appellant did not comply with 0. 20 r.7 of the Civil procedure Rule as the draft order attached to the record was not approved by the Respondent’s counsel. According to the affidavit sworn by Mrs. Esmail the draft order was received by her for approval on 24th or 25th January, 1993 not giving her mandatory 7 days for approval of the draft. The order was signed by the Deputy Registrar on 26th January, 1993. Mr. Esmail for the Applicant has argued that 0. 20 r.7 is mandatory and any order signed in contravention of that order is not a proper order. However he conceded that the respondent could not say that it has suffered any prejudice. He cited a ruling of this court where it was held that as the Applicant was gravely prejudiced by not having a proper opportunity to approve the draft, the breach of the rule rendered the appeal incompetent.
Unless the Applicant has been prejudiced by the non compliance of the rule, the Respondent should not be shut out from having the matter determined on merits. We do not therefore agree with Mr. Esmail that the appeal should be struck out on this ground of non-compliance with 0. 20 r. 7.
The other ground which Mr. Esmail has taken is that the record is not complete. Mr. Gautama has conceded that certain annextures to the affidavit in support of the application for injunction the subject matter of this appeal were not attached to the affidavit. Apart from that there are some documents which should have been before the court to enable it to better understand the history of this appeal. However under r. 89 Mr. Esmail could have files supplementary record which he has not done. We therefore dismiss Mr. Esmail’s application.
We give leave to the Appellant to file supplementary record of appeal including all the proceedings and affidavits within 30 days. The appeal is consequently stood over generally. Costs of the notice of motion shall be costs in the appeal.
Dated and delivered at Nairobi this 29th day of October, 1996.
R.O. KWACH
………………….…
JUDGE OF APPEAL
P.K. TUNOI
………………..…..
JUDGE OF APPEAL
G.S. PALL
……………………..
JUDGE OF APPEAL
I certify that this is a
true copy of the original.
DEPUTY REGISTRAR