[1998] KECA 256 (KLR)
The Court held that the record of appeal was so defective—being incomplete, containing pages out of sequence, and many pages illegible—that it was impossible for the Court to properly consider the appeal. The Court emphasized that the duty to prepare a complete and legible record rests with the appellant, and that...
Source-derived case information.
- Citation
- [1998] KECA 256 (KLR)
- Parties
- Appellant: Societe de Transports Internationaux au Rwanda; Respondent: H. H. Abdi
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 20 of 1998
- Procedural Posture
- Civil Appeal / Application to Strike Out Record of Appeal
- Outcome
- Application allowed. Record of appeal struck out.
- Judges
- JE Gicheru, GS Pall
- Legal Topics
- Record of Appeal, Appellate Procedure, Procedural Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Societe de Transports Internationaux au Rwanda
Appellant
H. H. Abdi
Respondent
Procedural Posture
Civil Appeal / Application to Strike Out Record of Appeal
Legal Issues
- 1 Whether the record of appeal was incomplete and non-compliant with the Court of Appeal Rules.
- 2 Whether the responsibility for preparing a complete and legible record of appeal lies with the appellant.
- 3 Whether procedural defects in the record justify striking out the appeal.
Ratio Decidendi
The Court held that the record of appeal was so defective—being incomplete, containing pages out of sequence, and many pages illegible—that it was impossible for the Court to properly consider the appeal. The Court emphasized that the duty to prepare a complete and legible record rests with the appellant, and that blaming the superior court for missing files does not absolve the appellant of this responsibility. The procedural defects were so fundamental that they justified striking out the record of appeal, as proceeding on the basis of an incomplete record would occasion injustice. The Court acknowledged the protracted nature of the proceedings and the potential for injustice due to...
Court Disposition
Application allowed. Record of appeal struck out.
Orders
- The record of appeal lodged in this court on 27th February, 1998 is struck out.
- The applicant shall have the costs of this application.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT NAIROBI (CORAM: GICHERU, TUNOI & PALL, JJ.A.) CIVIL APPEAL NO. 20 OF 1998 BETWEEN
SOCIETE DE TRANSPORTS INTERNATIONAUX AU RWANDA .......APPELLANT
AND
H. H. ABDI ..........................................RESPONDENT
(Appeal from a Ruling of the High Court at Nairobi (Mbito, J.) dated the 17th day of February, 1993 in
H.C.MISC. CIVIL APPLICATION NO. 911 OF 1991)
**************************
RULING OF THE COURT
By this application brought under rules 80 and 85 (1) and (2) of the Rules of this Court, the respondent moves the Court to strike out the record of appeal lodged in this Court on 27th February, 1998, in Civil Appeal Number 20 of 1998 on the grounds, first; that the record of appeal is not complete in that it does not incorporate full proceedings of the trial in the superior court, secondly, that several pages have been typed out of sequence, and; finally, that many pages of the record are illegible.
Mr. Nagpal, counsel for the respondent, whilst conceding that these mistakes are rampant and obvious in the record of appeal, attributed the omission to the missing court file. He averred that the respondent was not to blame since the record of appeal was prepared and filed according to the court proceedings which were supplied to him; moreover, he submitted the same were certified by the superior court.
A complete record of the proceedings is always desirable in order to enable the appellate court to consider fully the matter before it and to arrive at the truth and do justice to the parties. More often than not missing sentences, paragraphs, words etc. may obscure, or conceal vital issues necessary for determination of an appeal.
We must confess that it has been rather difficult for us to peruse the record of appeal because many of its pages are blurred and illegible. This offends rule 13 of the Rules.Throwing blame on to the superior court will not do since, primarily, the preparation of the record of appeal in civil matters lies squarely on the intending appellant.
We sympathise with the respondent. Its appeal has been a non starter and has been struck out on so many occasions due to one technicality or the other. No doubt the subject matter of the intended appeal is large. The proceedings have been protracted. Delay in finalising the matter is inevitable. We are, however, mindful that rules of procedure are not framed to defeat justice, but, in the present instance injustice may be occasioned if we relied on an incomplete record.
This application must be allowed. We so order. The record of appeal lodged in this court on 27th February, 1998 is struck out. The applicant shall have the costs of this application.
Dated and delivered at Nairobi this 9th day of October, 1998.
J. E. GICHERU
...............
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