[1997] KECA 358 (KLR)
The court found that there was no legal impediment to granting leave to file a supplementary record of appeal under Rule 85(2A) of the Court of Appeal Rules. The omission of the order granting leave to appeal was due to oversight, as explained in the supporting affidavit. The court exercised its discretion under...
Source-derived case information.
- Citation
- [1997] KECA 358 (KLR)
- Parties
- Applicant: Simon Kitavo Nduto; Applicant: Jubilee Insurance Company; Respondent: Benson Owenga Anjere
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 170 of 1995
- Procedural Posture
- Civil Appeal / Application for Leave to File Supplementary Record of Appeal
- Outcome
- Application allowed. Leave granted to file supplementary record of appeal.
- Legal Topics
- Supplementary Record of Appeal, Leave to Appeal, Court of Appeal Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Kitavo Nduto
Applicant
Jubilee Insurance Company
Applicant
Benson Owenga Anjere
Respondent
Procedural Posture
Civil Appeal / Application for Leave to File Supplementary Record of Appeal
Legal Issues
- 1 Whether the applicants should be granted leave to file a supplementary record of appeal to include the order granting leave to appeal.
- 2 Whether the omission of the order from the record was an excusable oversight.
- 3 Whether granting leave would prejudice the respondent.
Ratio Decidendi
The court found that there was no legal impediment to granting leave to file a supplementary record of appeal under Rule 85(2A) of the Court of Appeal Rules. The omission of the order granting leave to appeal was due to oversight, as explained in the supporting affidavit. The court exercised its discretion under Rule 42, noting that no prejudice would be caused to the respondent by allowing the application. Consequently, the court granted the leave sought, allowing the applicants to file and serve the supplementary record within 15 days.
Court Disposition
Application allowed. Leave granted to file supplementary record of appeal.
Orders
- Leave is granted to the applicants to file and serve a supplementary record of appeal within 15 days from the date hereof.
- No order as to costs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT KISUMU
(CORAM: GICHERU, TUNOI & LAKHA, JJ.A.)
CIVIL APPEAL NO. 167 OF 1998
BETWEEN
1. SIMON KITAVO NDUTO
2. JUBILEE INSURANCE COMPANY............................APPLICANTS
AND
BENSON OWENGA ANJERE....................................RESPONDENT
(An appeal from the ruling of the Hon. Mr. Justice Khamoni dated the 17th day of May, 1995 at Nairobi in H.C.C.C. NO. 2452 OF 1982) ***************
RULING OF THE COURT
The appellants in this matter have brought an application under Rules 42 (1) and 85 (2A) of the Court of Appeal Rules, for an order granting leave to file a supplementary record of appeal to bring on record a copy of the order granting them leave to appeal against Khamoni J.'s ruling dated 17th May, 1995. There is no legal impediment to the grant of the leave sought in view of the provisions of rule 85 (2A) above. The appellants' counsel in her affidavit in support of the present application says that a copy of the order sought to be brought into the record was omitted by oversight. I do not doubt that and, in exercise of my judicial discretion under rule 42 of the Rules of this Court, I grant the leave sought, moreso because I am satisfied that no prejudice is likely to be occasioned to the respondent by the grant of the leave.
I however make no order as to the costs of this application. The supplementary record to be filed and served within 15 days from the date hereof.
Dated at Nairobi this 11th day of April, 1997.
S. E. O. BOSIRE
..................
AG. JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR