[2003] KECA 86 (KLR)
The Court held that the omission of the practising certificate of the advocate from the record of appeal constitutes a breach of the mandatory requirements under rule 85(1)(f) of the Court of Appeal Rules. This procedural defect renders the appeal incurably defective and incompetent. As a result, the Court found it...
Source-derived case information.
- Citation
- [2003] KECA 86 (KLR)
- Parties
- Appellant: Southern Credit Banking Corporation Ltd; Respondent: Tulip Apartments Limited; Respondent: Lorimar Apartments Limited; Respondent: Mohamed A.K. Madhani Advocate practising as Mohamed Madhani & Co. Advocates
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 173 of 2002
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection Regarding Record of Appeal
- Outcome
- appeal struck out as incompetent
- Legal Topics
- Appeal Record Requirements, Mandatory Documents, Incompetent Appeal, Court of Appeal Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Southern Credit Banking Corporation Ltd
Appellant
Tulip Apartments Limited
Respondent
Lorimar Apartments Limited
Respondent
Mohamed A.K. Madhani Advocate practising as Mohamed Madhani & Co. Advocates
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection Regarding Record of Appeal
Legal Issues
- 1 Whether the omission of the practising certificate of the advocate from the record of appeal renders the appeal incompetent.
- 2 Whether it is necessary to consider the requirement for leave to appeal in light of the procedural defect.
Ratio Decidendi
The Court held that the omission of the practising certificate of the advocate from the record of appeal constitutes a breach of the mandatory requirements under rule 85(1)(f) of the Court of Appeal Rules. This procedural defect renders the appeal incurably defective and incompetent. As a result, the Court found it unnecessary to address the substantive issue of whether leave to appeal was required, since the appeal could not be sustained in its current form. The appeal was therefore struck out for incompetence, with no order as to costs, as the issue was not raised by the respondents.
Court Disposition
appeal struck out as incompetent
Orders
- The appeal is struck out as incompetent.
- No order as to costs.
Full Case Text
Judgment text and source record
20 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: LAKHA, O'KUBASU & KEIWUA, JJ.A)
CIVIL APPEAL NO. 173 OF 2002
BETWEEN
SOUTHERN CREDIT BANKING CORPORATION LTD.................................APPELLANT
AND
TULIP APARTMENTS LIMITED .........................................................1ST RESPONDENT
LORIMAR APARTMENTS LIMITED .................................................2ND RESPONDENT
MOHAMED A.K. MADHANI ADVOCATE
Practising as MOHAMED MADHANI & CO. ADVOCATES ..........3RD RESPONDENT (Appeal from the ruling and order of the High Court of Kenya at Nairobi (Mr. Justice Rimita) dated 16th May, 2002 in H.C.C.C NO. 284 OF 2002) ************
RULING OF THE COURT
The record of appeal does not include the practising certificate of the advocate as is properly conceded although this was a matter which was very much in issue. The learned judge refers to the production of this certificate in his judgment as having been produced by consent. That being so, this omission is in breach of the mandatory provision of rules 85(1) (f) of the Rules of this Court and renders the appeal incurably defective and incompetent.
It is therefore not necessary to deal with the question whether leave to appeal was required or not.
Accordingly, the appeal being incompetent, is struck out but with no order as to costs as it was not raised by the respondents.
Made at Nairobi this 16th day of January, 2003.
A.A. LAKHA ............... JUDGE OF APPEAL
E.O O'KUBASU ............... JUDGE OF APPEAL
M. Ole KEIWUA ............... JUDGE OF APPEAL
I certify that this is a true copy of the original. DEPUTY REGISTRAR