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Court of AppealStruck OutCivil Appeal 175 of 1995

Stallion Insurance Co. Ltd v Rosemary Olao [1996] KECA 64 (KLR)

Court of Appeal of Kenya
19 March 1996
ROR. S. C. OmoloAAA. M. AkiwumiALA. A. Lakha
186 words in judgment
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The bottom line

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The Court of Appeal struck out an insurance appeal because its record left out required exhibits — a fatal, unfixable procedural defect.

What this practically means

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Executive summary

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This short ruling of the Court of Appeal at Kisumu disposed of Civil Appeal 175 of 1995, an appeal by Stallion Insurance Co. Ltd against a ruling and order of the High Court of Kenya at Kakamega (B. K. Tanui, J.) delivered on 16 June 1995 in H.C.C.C. No. 593 of 1993. The court found that the appeal record did not include several exhibits, in breach of the mandatory provisions of Rule 85(1)(k) of the Court of Appeal Rules. It held the omission fatal, rendering the appeal incurably incompetent, and further held that the missing exhibits could not be introduced through a supplementary record as Rule 2A did not permit it. Counsel for the appellant, Mr. Kasamani, conceded that the appeal should be struck out, and the court agreed the concession was rightly made. The full bench of Omolo, Akiwumi and Lakha, JJ.A, in a single ruling of the court, struck out the appeal with no order as to costs. The binding proposition for lower courts and litigants is that compliance with Rule 85(1)(k) as to the contents of the record of appeal is mandatory, and a record omitting required exhibits cannot be salvaged by a supplementary record under Rule 2A. The ruling does not disturb the High Court's decision on the merits; the appeal never proceeded to substantive determination.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether an appeal whose record omits several exhibits, in breach of Rule 85(1)(k) of the Court of Appeal Rules, is competent

Key legal issues

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01

Competence of an appeal where the record omits mandatory exhibits under Rule 85(1)(k)

Holding

The appeal was struck out as incurably incompetent because the record breached the mandatory provisions of Rule 85(1)(k) and the omission could not be remedied by a supplementary record.

Reasoning

The court treated Rule 85(1)(k) of the Court of Appeal Rules as mandatory, requiring the record to include the exhibits. Their absence was characterised as fatal to the appeal. Rule 2A, governing supplementary records, was held not to provide a cure, so the appeal could not proceed. Counsel for the appellant conceded the appeal should be struck out, a concession the court endorsed as rightly made.

p. 2

Legal principles established

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  • An appeal record that omits exhibits required by Rule 85(1)(k) of the Court of Appeal Rules is fatally defective and the appeal is incurably incompetent; the defect cannot be cured by including the exhibits in a supplementary record under Rule 2A.

Court orders

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  1. 1.The appeal be and is hereby struck out
  2. 2.No order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

RO
majority
AA
majority
AL
majority
On appeal from
High Court of Kenya at Kakamega
H.C.C.C. No. 593 of 1993
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal under the Constitution and the Court of Appeal Rules (Rule 85(1)(k) and Rule 2A invoked)

Relief refused

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Prosecution of the appeal on the incomplete record

The record omitted several exhibits in breach of the mandatory Rule 85(1)(k); the omission could not be cured by a supplementary record under Rule 2A

p. 2

Costs

No order as to costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In this appeal the record does not include several exhibits in breach of the mandatory provisions of Rule 85(1) (k) of the Rules of this Court.
p. 2Mandatory content of the appeal record
Such an omission is fatal and renders the appeal incurably incompetent since they may not be included in a supplementary record: See Rule 2A.
p. 2Fatal effect of omission; no cure by supplementary record
Accordingly, we order that the appeal be and is hereby struck out with no order as to costs.
p. 2Final orders

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Stallion Insurance Co. Ltd v Rosemary Olao [1996] KECA 64 (KLR)", Case Analysis (1996). Civil Appeal 175 of 1995. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1996/64/eng@1996-03-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.