[1996] KECA 64 (KLR)
The Court held that the omission of several exhibits from the record of appeal constituted a breach of the mandatory provisions of Rule 85(1)(k) of the Court of Appeal Rules. Such an omission is fatal and renders the appeal incurably incompetent, as the missing exhibits cannot be included in a supplementary record...
Source-derived case information.
- Citation
- [1996] KECA 64 (KLR)
- Parties
- Appellant: Stallion Insurance Co. Ltd; Respondent: Rosemary Olao
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 175 of 1995
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection
- Outcome
- appeal struck out
- Judges
- AM Akiwumi
- Legal Topics
- Appeal Record Requirements, Striking Out Appeal, Court of Appeal Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stallion Insurance Co. Ltd
Appellant
Rosemary Olao
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the omission of several exhibits from the record of appeal renders the appeal incompetent under Rule 85(1)(k) of the Court of Appeal Rules.
- 2 Whether such omission can be cured by filing a supplementary record.
Ratio Decidendi
The Court held that the omission of several exhibits from the record of appeal constituted a breach of the mandatory provisions of Rule 85(1)(k) of the Court of Appeal Rules. Such an omission is fatal and renders the appeal incurably incompetent, as the missing exhibits cannot be included in a supplementary record under Rule 2A. The appellant's counsel conceded the defect, and the Court accordingly struck out the appeal. The decision underscores the strict procedural requirements for compiling the record of appeal and the consequences of non-compliance, which include the striking out of the appeal regardless of the merits.
Court Disposition
appeal struck out
Orders
- The appeal is hereby struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT KISUMU CIVIL APPEAL 175 OF 1995 STALLION INSURANCE CO. LTD................…………………..APPELLANT
AND
ROSEMARY OLAO...........................………………………….RESPONDENT
(Appeal from the Ruling and Order of the High Court of Kenya at Kakamega (B. K. Tanui, J.) delivered on the 16th day of June, 1995
IN
H.C.C.C. NO. 593 OF 1993
**********************
RULING OF THE COURT
In this appeal the record does not include several exhibits in breach of the mandatory provisions of Rule 85(1) (k) of the Rules of this Court. Such an omission is fatal and renders the appeal incurably incompetent since they may not be included in a supplementary record: See Rule 2A.
Mr. Kasamani conceded and, in our opinion, rightly that the appeal should be struck out. Accordingly, we order that the appeal be and is hereby struck out with no order as to costs.
Made at Kisumu this 19th day of March, 1996.
R. S. C. OMOLO
……………………
JUDGE OF APPEAL
A.M. AKIWUMI
…………………….
JUDGE OF APPEAL
A.A. LAKHA
…………………….
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR