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|Case Number:||Civil Appeal 87 of 1998|
|Parties:||Pharmacy & Poisons Boa v Sipri Pharmaceuticals Limited & Commissioner of Customs & Excise|
|Date Delivered:||25 Nov 1999|
|Court:||Court of Appeal at Kisumu|
|Judge(s):||Philip Kiptoo Tunoi, Abdulrasul Ahmed Lakha, Richard Otieno Kwach|
|Citation:||Pharmacy & Poisons Boa v Sipri Pharmaceuticals Limited & another  eKLR|
|Case History:||(Application to strike out the memorandum and record of appeal in Civil Appeal No. 87 of 1998 in an appeal from the ruling and order of the High Court of Kenya at Kisumu (Wambilyangah, J.) dated 2nd December, 1997 in H.C. MISC. C. NO. 101 OF 1997)|
|History Docket No:||H.C. MISC. C. NO. 101 OF 1997|
|History Judges:||Isaac Charles Cheskaki Wambilyangah|
|Case Outcome:||Appeal struck out.|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
CIVIL APPEAL 87 OF 1998
THE PHARMACY AND POISONS BOA.................................................APPELLANT
SIPRI PHARMACEUTICALS LIMITED........................................1ST RESPONDENT
COMMISSIONER OF CUSTOMS & EXCISE...............................2ND RESPONDENT
(Application to strike out the memorandum and record of appeal in Civil Appeal No.
87 of 1998 in an appeal from the ruling and order of the High Court of Kenya at Kisumu
(Wambilyangah, J.) dated 2nd December, 1997
H.C. MISC. C. NO. 101 OF 1997)
RULING OF THE COURT:
This is an application under rule 80 of the Court of Appeal Rules for an order striking out the appeal. The grounds upon which the order is sought are -
(1)That the record of appeal does not contain a certified copy of the order appealed against in breach of rule 85(1)(h) of the Court of Appeal Rules.
(2)That the Chamber Summons dated 6th August, 1997 which was the originating process has not been included - rule 85(1)(C).
(3)That the Record of Appeal has not been certified as correct as required by rule 85(5) of the Court of Appeal Rules.
(4)Record of Appeal was served on the respondent out of time without leave of the court being sought.
(5)Parts of the Record of Appeal are illegible in breach of rule 13(2) of the Court of Appeal Rules.
Mr. Mwenesi, for the respondent, has attempted to explain away these defects but some of these are serious defects which cannot be cured by merely filing a supplementary record of appeal.
In the result we agree with Mr. Wasuna that the defects except No. 3 and 5 above are incurable. The consequence of this is that the appeal is incompetent and it is accordingly struck out with costs to the respondent. The respondent will also have the costs of the Notice of Motion.
Dated and delivered at Kisumu this 25th day of November, 1999.
JUDGE OF APPEAL
JUDGE OF APPEAL
JUDGE OF APPEAL
I certify that this is a true copy of the original.