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Court of AppealStruck OutCivil Appeal No. 152 of 1999

MALINDI AIR SERVICES & ANOTHER vs HALIMA ABDINOOR HASSAN [1999] KECA 169 (KLR)

Court of Appeal
8 December 1999
RKR.O. KwachALA.A. LakhaSBS.E.O. Bosire
209 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~1 min to read original · ~4 min brief

The bottom line

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The Court of Appeal struck out an appeal because the Order in the record omitted part of the High Court's ruling, making the appeal incompetent.

What this practically means

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Executive summary

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This is a short ruling of the Court of Appeal at Nairobi (Kwach, Lakha and Bosire, JJ.A.) delivered on 8 December 1999 in Civil Appeal No. 152 of 1999, an appeal by Malindi Air Services and John M. Cleave against a ruling of the High Court (Mbogholi Msagha, J.) of 6 August 1998 in H.C.C.C. No. 1509 of 1998. The respondent, Halima Abdinoor Hassan, applied under rule 80 of the Court of Appeal Rules to strike out the appeal. The ground was that the Order included in the record was not the Order of the High Court, because paragraph (c) of the Ruling was not reflected in it; the Order therefore did not reflect the decision of the court below. The Court of Appeal agreed, holding that the record was incurably defective and rendered the appeal incompetent. It struck out the appeal with costs, including the costs of the Notice of Motion. The ruling binds lower courts and parties to the proposition that the Order in an appellate record must reflect the full decision of the court below; an Order omitting part of the Ruling makes the record incurably defective and the appeal incompetent, exposing it to being struck out under rule 80. No authorities were cited and the judgment is a single ruling of the whole court with no separate opinions.

Questions the Court framed

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

  1. 1.Whether the Order included in the record, which does not reflect paragraph (c) of the High Court Ruling, renders the record defective and the appeal incompetent such that the appeal should be struck out

Key legal issues

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01

Whether an Order that omits a paragraph of the Ruling below renders the appeal incompetent

Holding

Yes. The Order in the record did not reflect paragraph (c) of the High Court Ruling and therefore did not reflect the decision of the court below; the record was incurably defective and the appeal incompetent, and was struck out under rule 80 of the Court of Appeal Rules.

Reasoning

The court treated the completeness of the Order as essential to the validity of the appeal record. Because paragraph (c) of the Ruling was not reflected in the Order included in the record, the Order did not correspond to the decision actually made by the High Court. A record that does not contain the true Order of the lower court cannot sustain an appeal; the defect was characterized as incurable, leaving no option but to strike out the appeal under rule 80, with costs.

p. 2

Legal principles established

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  • An appeal record must contain the Order that reflects the full decision of the court below; where the Order omits part of the Ruling, the record is incurably defective and the appeal is incompetent and liable to be struck out under rule 80

Court orders

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  1. 1.Civil Appeal No. 152 of 1999 struck out
  2. 2.Costs of the appeal awarded to the respondent, including the costs of the Notice of Motion

The bench

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

RK
majority
AL
majority
SB
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 1509 of 1998
Jurisdiction invoked
Rule 80 of the Court of Appeal Rules (appellate jurisdiction over appeals from the High Court)

Relief refused

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Continuation/prosecution of the appeal

The Order in the record did not reflect the decision of the court below, making the record incurably defective and the appeal incompetent

p. 2

Costs

Appeal struck out with costs, including the costs of the Notice of Motion

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.

the Order included in the record is not the Order of the Court since para (c) of the Ruling is not reflected in the Order included in the record.
p. 2Defective record - Order not reflecting the Ruling
The record, is therefore, incurably defective and renders the appeal incompetent. It is, therefore, struck out with costs including the costs of the Notice of Motion.
p. 2Final orders - striking out incompetent appeal

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, "MALINDI AIR SERVICES & ANOTHER vs HALIMA ABDINOOR HASSAN [1999] KECA 169 (KLR)", Case Analysis (1999). Civil Appeal No. 152 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/169/eng@1999-11-08

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