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|Case Number:||Civil Appeal (Application) 230 of 2009|
|Parties:||MISTRY VALJI NARAN MULJI v VANTAGE ROAD TRANSPORTERS LTD & 6 others|
|Date Delivered:||07 Oct 2011|
|Court:||Court of Appeal at Malindi|
|Judge(s):||Samuel Elikana Ondari Bosire, Philip Nyamu Waki, John walter Onyango Otieno|
|Citation:||MISTRY VALJI NARAN MULJI v VANTAGE ROAD TRANSPORTERS LTD & 6 others  eKLR|
|Case History:||(Application to strike out the notice and record of appeal from the ruling and order of the High Court of Kenya at Mombasa (Mwera, J.) dated 29th July, 2005 in H.C.C.S.NO.55 OF 2005)|
|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 KENYAIN THE HIGH COURT OF KENYA AT MOMBASA
Upon being served with the record of appeal, Mistry Valji Naran Mulji moved to court by way of notice of motion dated 15th October 2009 filed on 16th October 2009 and sought orders:-
“1. That the appeal filed in the Court of Appeal Registry at Mombasa on the 18th day of September, 2009 be struck out and or dismissed.
However, apparently reacting to that application, the first and second respondents in the application namely, Vantage Road Transporters Limited and Shahid Pervez Butt, filed a notice of motion dated 27th January 2010, on 28th January 2010. We have mentioned it hereinabove. In that notice of motion, the first and second respondents who are the applicants sought three orders namely that:-
“(a) The appellants/applicants be granted leave to file a supplementary record of appeal.
Earlier these two applications came up for hearing on more than two occasions before this Court differently constituted. On two of these occasions, specifically on 3rd June 2010 and on 21st January 2011, the Court made orders that the two applications be listed for hearing on the same day. This was because, the result of the second application filed on 28th January 2010 could, to some extent affect the decision of the application dated 13th October, 2009. We do not however, think they were in any way consolidated, and therefore we heard the application filed on 28th January 2010 first. This ruling considers each application separately.
When the application dated 27th January 2010 and filed on 28th January 2010 was called out for hearing, neither the applicants nor their advocates were present in Court to prosecute it although they were duly served with the hearing notice for the hearing of the case on 28th when it was indeed heard. Mr. Gautama the learned counsel for the first respondent in that application asked the Court to dismiss the application. In the circumstances and as the applicants in that application were not present to prosecute the application, it cannot be sustained. It is dismissed pursuant to rule 56 (1) of this Court’s Rules and costs of the application are awarded to the first respondent in that application Mistry Valji Naran Mulji.
As to the Notice of Motion dated and filed on 16th October 2009, the affidavit in support of it which was not challenged states in brief that the appellants in Civil Appeal No. 230 of 2009 sought to be struck out, who are the respondents in the notice of motion, filed an appeal being Civil Appeal No. NAI 274 of 2005 against the decision of Mwera, J. delivered on 29th July 2005 but that appeal was struck out for want of leave to appeal. This Court’s ruling striking it out was dated and delivered on 27th July 2007. The respondents/appellants then moved to the High Court and obtained leave to appeal and leave to file a record of appeal out of time and thereafter sought leave of this Court to file a notice of appeal out of time but that application was dismissed vide this Court’s Ruling dated and delivered on 13th February, 2009. The respondents/appellants thereafter went back to the High Court and obtained an order for extension of time to file another notice of appeal. That was the order used as the basis for commencing the appeal sought to be struck out. The applicants in this notice of motion, who are the respondents in the appeal, contend that that was not proper as a similar application had been refused by this Court and thus the High Court had no jurisdiction to grant it as that went against the doctrine of res judicata. Mr. Gautama, for the applicant, in his submissions urges us to allow the application and strike out the appeal. Further and in any event, the record of appeal before us does not contain vital documents namely, the plaint, amended plaint and defences filed in the superior court which as at the time the appeal was filed, were primary documents and their omission from the record of appeal was fatal.
In our view, even though, the omission to annex the plaint, amended plaint and defences namely pleadings was as at the time the appeal was filed, fatal, that is no longer the case following amendments to the Appellate Jurisdiction Act and to this Court’s Rules and we would have allowed the respondents/appellants to annex them by way of a supplementary record of appeal even after dismissing the main application for lack of appearance. However, as to whether the record of appeal is valid in law, we think Mr. Gautama is plainly right that this Court had struck out the first appeal on grounds that it was incompetent for lack of leave to file it and also declined to grant leave to institute an appeal. Furthermore, an application for extension of time to file and serve a record of appeal had been declined by a single Judge of this Court and a reference to full Court was dismissed thus confirming a single Judge’s refusal. It followed therefore that the respondents/appellants had no business going back to the High Court to obtain another order for extension of time to file a notice of appeal and basing the appeal on such order. The matter had been a baby of this Court and this Court had made a decision on it. The High Court’s order for extension of time made after this Court’s decision was, in our view, made without jurisdiction. Thus the appeal is clearly incompetent as it was not based on a valid notice of appeal. This is a matter which, in our view, is incurable even by the application of the overriding objective under sections 3A and 3B of the Appellate Jurisdiction Act for it goes to the root of the matter; namely, whether the notice of appeal upon which the appeal is premised is valid and we have held that it was not. That is a matter of law and is not a matter of technicality which can be cured.
In short, the notice of motion succeeds. Civil Appeal No.230 of 2009 filed on 18th September, 2009 is hereby struck out with costs of the appeal and costs of this notice of motion to the applicant in the motion.
Dated and delivered at Mombasa this 7th day of October, 2011.