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|Case Number:||Civil Appeal (Application) 83 of 2008|
|Parties:||Housing Finance Company of Kenya v Rose Wangari Ndegwar|
|Date Delivered:||04 Mar 2011|
|Court:||Court of Appeal at Mombasa|
|Judge(s):||Emmanuel Okello O'Kubasu, John walter Onyango Otieno, Joseph Gregory Nyamu|
|Citation:||Housing Finance Company of Kenya v Rose Wangari Ndegwar  eKLR|
|Case History:||(Application to strike out the appeal being an appeal from the Ruling and Order of the High Court of Kenya at Mombasa (Sergon, J.) dated 20th day November, 2007 in H.C.C.C. NO. 8 OF 2007)|
|Parties Profile:||Private v Individual|
|History Docket No:||8 of 2007)|
|History Judges:||Joseph Kiplagat Sergon|
Civil Practice and Procedure-application-application to strike out an appeal on grounds that there were procedural lapses on the part of the respondent while seeking to appeal-consideration of the court-need for courts to consider the overriding objectives in the matter as opposed to determining matters on technicalities-Constitution of Kenya, Article 159(2)(d);Court of Appeal Rules, rules 42(1),80.
|Case Outcome:||Appeal Dismissed|
|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|
As regards the order which was challenged by Mr. Issa, it was Mr. Kamundi’s submission that the order reflected what was in the record of appeal and hence it could not be declared a nullity.
Mr. Kamundi informed us that there was another application in the superior court in which a ruling was yet to be delivered and that in the event that the application in the High Court is allowed, then the appeal, the subject of this application shall be rendered unnecessary. On this issue of a pending application, Mr. Issa’s response was that there was indeed an application for injunction which was, however, dismissed, and that there was a subsequent suit which was filed in which an injunction is being sought.
Mr. Kamundi, conceded that there might have been procedural lapses but it was his view that these were merely technicalities which should not be used to defeat the ends of justice. He sought to rely on Article 159(2)(d) of the Constitution.
We have considered the rival submissions presented in this application and having set out the grounds in support of the application, it would appear that there were indeed some procedural lapses but in our view, these lapses are excusable especially in view of the explanation given by Mr. Kamundi.
In view of the foregoing and bearing in mind special circumstances of this case, we are satisfied that the minor procedural lapses in preparation of the record of appeal are capable of being rectified and are sufficiently cured by the provisions of the Appellate Jurisdiction Act cited above. We direct that either party has leave to file a supplementary record within 7 days incorporating any of the essential documents not previously incorporated in the record. In the circumstances, we are of the view that the application cannot be granted. Consequently, we order that the application to strike out the appeal be and is hereby dismissed but with no orders for costs.
Dated and delivered at Mombasa this 4th day of March, 2011.