Kenya Commercial Finance Co. Ltd v Richard Akwesera Onditi [2008] KECA 17 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal because the record omitted trial exhibits, ruling an incomplete record cannot be fixed with a supplementary filing.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the record of appeal, omitting some documentary exhibits produced before the trial court, is incurably defective and should be struck out
Key legal issues
#Whether an incomplete record of appeal warrants striking out
The record of appeal was incurably defective because it omitted some documentary exhibits produced before the trial court, and the appellant conceded those exhibits could not be introduced by a supplementary record of appeal; the appeal was therefore struck out as incompetent.
The applicant moved under rule 80 of the Court of Appeal Rules to strike out the record on the ground that some trial exhibits were missing. The appellant conceded the omission and acknowledged that rule 85(2A) barred curing the defect by a supplementary record. With the defect admitted and no permissible remedy available, the Court held the record incurably defective and struck out the appeal, though it declined to award costs.
Legal principles established
#- Where a record of appeal omits exhibits produced before the trial court which cannot be brought in by way of a supplementary record, the record is incurably defective and the appeal must be struck out as incompetent
Court orders
#- 1.The motion dated 18th August 2008 is allowed
- 2.Civil Appeal No. 157 of 2008 is struck out as being incompetent
- 3.No order as to costs of the struck out appeal and the motion
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kakamega
- H.C.C.C. No. 65 of 1993
- Jurisdiction invoked
- Rule 80 of the Court of Appeal Rules
Relief refused
#Costs of the application by the successful applicant
The court declined to award costs despite allowing the striking-out motion
Costs
No order as to costs of the struck out appeal and the motion - each party effectively to bear their own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
it follows that this record of appeal is incurably defective
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.
Issues in the judgment
#Party roles in the heading appear reversed: the applicant (moving to strike out) is described as respondent to the appeal and the respondent to the motion as appellant, which the body confirms.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Commercial Finance Co. Ltd v Richard Akwesera Onditi [2008] KECA 17 (KLR)", Case Analysis (2008). Civil Appeal Appli 157 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/17/eng@2008-12-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.