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Court of AppealDismissedCivil Appeal 84 of 2004· [2010] KECA 416 (KLR)

Fred C. Fedha & another v Edwine E. Asava Majani [2010] KECA 416 (KLR)

Court of Appeal of Kenya
18 February 2010
SBS.E.O. BosireEGE.M. GithinjiJOJ.W. Onyango Otieno
376 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to strike out a bulky supplementary record of appeal, prioritizing fair hearing over strict procedure.

What this practically means

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Executive summary

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This is a short interlocutory ruling of the Court of Appeal at Eldoret in Civil Appeal 84 of 2004, delivered by the full bench of Bosire, Githinji and Onyango Otieno, JJA on 18th February 2010. The respondent, Edwine E. Asava Majani, moved the Court under rules 80 and 82 of the Court of Appeal Rules seeking two orders: first, that the supplementary record of appeal filed on 6th March 2009 be struck out on the ground that, instead of containing only the parts of the record for which leave was granted, it reproduced virtually the entire record of appeal; and secondly, that the notice of appeal filed on 8th March 2004 be deemed withdrawn. The appellant, Fred C. Fedha and Peter W. Fedha as personal representatives of the estate of Edwin Washiko Fedha, had obtained leave on 25th February 2009 to file a supplementary record because some pages of the record were not easily legible, but in counsel's judgment included nearly all documents. The Court, exercising its jurisdiction under section 3A of the Appellate Jurisdiction Act and having regard to the overriding objective of civil litigation, held that although the supplementary record was bulky it did not offend the rules of the Court, and both prayers failed. The notice of motion dated 6th April 2009 was dismissed with no order as to costs. The underlying appeal, arising from a judgment of Nambuye, J. in H.C.C.C. No. 7 of 1996, was unaffected by this ruling.

Key legal issues

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01

Whether filing a whole record of appeal as a supplementary record warrants striking out

Holding

No. The motion to strike out the supplementary record was without merit; the bulkiness of the supplementary record does not offend the rules of the Court.

Reasoning

The respondent had been granted leave on 25th February 2009 to file a supplementary record because parts of the record of appeal were not easily legible. The applicant argued that including virtually all documents exceeded the terms of that leave. The Court invoked its inherent jurisdiction under section 3A of the Appellate Jurisdiction Act and the overriding objective of civil litigation, concluding the supplementary record did not offend the rules despite its bulk, and declined to strike it out.

p. 1
02

Whether the notice of appeal should be deemed withdrawn

Holding

The prayer to deem the notice of appeal filed on 8th March 2004 as withdrawn also failed for the same reasons.

Reasoning

The second prayer in the motion sought an order deeming the notice of appeal as withdrawn. The Court applied the same reasoning that had led it to refuse striking out the supplementary record - reliance on section 3A and the overriding objective - and dismissed that prayer as well, disposing of the entire motion.

p. 1

Legal principles established

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  • A bulky supplementary record of appeal that includes the whole record does not, of itself, offend the Court of Appeal Rules where leave to file a supplementary record has been granted, having regard to the overriding objective under section 3A of the Appellate Jurisdiction Act

Court orders

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  1. 1.The notice of motion dated 6th April 2009 is dismissed
  2. 2.No order as to costs
On appeal from
High Court of Kenya at Eldoret
H.C.C.C. No. 7 of 1996
Jurisdiction invoked
Section 3A of the Appellate Jurisdiction Act and rules 80 and 82 of the Court of Appeal Rules

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, "Fred C. Fedha & another v Edwine E. Asava Majani [2010] KECA 416 (KLR)", Case Analysis (2010). Civil Appeal 84 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/416/eng@2010-02-18

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