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|Case Number:||Civil Appeal Appli 157 of 2008|
|Parties:||Kenya Commercial Finance Co. Ltd v Richard Akwesera Onditi|
|Date Delivered:||05 Dec 2008|
|Court:||Court of Appeal at Kisumu|
|Judge(s):||Riaga Samuel Cornelius Omolo, Samuel Elikana Ondari Bosire, John walter Onyango Otieno|
|Citation:||Kenya Commercial Finance Co. Ltd v Richard Akwesera Onditi  eKLR|
|Case History:||(Application to strike out Civil Appeal No. 157 of 2008 being appeal against the judgment and decree of the High Court of Kenya at Kakamega (Tanui, J) dated 18th September, 2001 In H.C.C.C. NO. 65 OF 1993)|
|Parties Profile:||Corporation v Individual|
|History Docket No:||H.C.C.C. NO. 65 OF 1993|
|History Judges:||Barabara Kiprugut Tanui|
[Ruling] Civil Practice and Procedure - appeal - striking out of appeal - application to strike out appeal - ground: record of appeal did not include some exhibits produced before the trial court - whether the omitted exhibits could be brought on record by way of a supplementary record of appeal - whether the record of appeal was incurably defective - Court of Appeal Rules rule 80, 85(2A)
|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 APPLI 157 OF 2008
KENYA COMMERCIAL FINANCE CO. LTD.........APPLICANT/RESPONDENT
RICHARD AKWESERA ONDITI….............….……RESPONDENT/APPELLANT
(Application to strike out Civil Appeal No. 157 of 2008 being appeal against the judgment and decree of the High Court of Kenya at Kakamega (Tanui, J) dated 18th September, 2001
H.C.C.C. NO. 65 OF 1993)
RULING OF THE COURT
Before us is a motion brought under rule 80 of the Court of Appeal Rules for an order striking out the record of appeal on, amongst other grounds, that the record of appeal does not include some of the exhibits produced before the trial court. The applicant is KENYA COMMERCIAL FINANCE COMPANY LIMITED, the respondent in the appeal. The respondent in the application who is the appellant in the appeal is RICHARD AKWESERA ONDITI. As the appellant concedes that some of the documentary exhibits which were produced before the trial court are not part of the record of appeal, and those documents may not be brought in by way of a supplementary record of appeal, in view of the provisions of rule 85(2A) of this Court’s Rules, it follows that this record of appeal is incurably defective. In the circumstances the motion dated 18th August, 2008 and filed on the same date is allowed with the result that this appeal is struck out as being incompetent. We however make no order as to costs of the struck out appeal and the motion.
DATED and DELIVERED at KISUMU this 5th day of DECEMBER, 2008.
JUDGE OF APPEAL
JUDGE OF APPEAL
J.W. ONYANGO OTIENO
JUDGE OF APPEAL
I certify that this is a true copy of the original.