1.The 2nd respondent/applicant herein, moved the court by way of Notice of Motion dated May 4, 2022 and is seeking the following orders:a.The application herein be certified urgent and be heard ex parte in the first instance.b.The honorable court do find that the record of appeal is incomplete and therefore incompetent.c.The honorable court strike out the entire appeal summarily for being bad in law.
2.The application is premised on the following grounds:a.The appellant filed their Record of Appeal dated September 23, 2020 forming part of this court record.b.It has come to the attention of the respondents and applicants that the record is incomplete since the respondents submissions in the lower court as well as an exhibit are missing.c.This is a glaring anomaly and was done deliberately by the appellant.d.Despite bringing this to the attention of the appellant, it has through its advocates neglected to rectify the position by filing a supplementary record of appeal.e.The 1st respondent’s advocate filed an application seeking to have the anomaly in the record rectified but the appellant filed grounds opposing the said application/rectification.f.The appellant has an order staying the execution of the judgment of the lower court and it’s still enjoying the said stay orders while deliberately delaying the instant appeal.g.The impugned painting on the suit property (that led to the appellant being found culpable of trespass) are still on the said property from sometime in the year 2015 and the delay in the determination of this appeal means that the trespass will persist.h.The appellant has been and continues to advertise its brand through the said painting/trespass even as it delays the instant appeal while enjoying the stay orders.i.By the time the appeal is finally determined if it’s to follow the normal course, the revenue the appellant will have drawn from the said advertisement will immensely surpass the damages awarded to the respondents in the subordinate court.j.The failure to file these crucial documents within the record of appeal is bound to have an adverse effect on the respondent’s and applicant’s cause when the judgment is finally rendered.k.The judgment that shall result from the incomplete record of appeal will not be proper since the court will not have considered all the material required for it to render a decision.l.The documents that are missing from the record ought to have been included therein compulsorily and as a matter of law.m.The appeal in its entirety is incompetent and bad in law by dint of the incomplete record of appeal.n.The appeal herein is ripe for summary dismissal for the foregoing reasons.o.The appellant has come to this court of Equity with unclean hands and should not be allowed to benefit unconscionably from the same.
3.The appellant opposed the application on the following grounds:a.That the 2nd respondent’s application herein has been brought after an inordinate and unreasonable delay.b.That the appellant prays that the 2nd respondent’s application date May 4, 2022 be dismissed with costs.
5.Submissions are not evidence. Mwera J (as he then was ) in Nancy Wambui Gatheru vs Peter W Wanjere Ngugi Nairobi HCCC No 36 of 1993 expressed himself as follows:Failure to include submissions which were made in the trial court in the record of appeal does not disadvantage any party, and more so the second respondent.
6.If the exhibit which was not included in the record turns out to be material in the course of hearing the appeal, the court will make appropriate findings.
7.It is my considered opinion that these two cannot be reasons to strike out the appeal. The application is dismissed. Costs will abide with the outcome of the appeal.