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Court of AppealDismissedCivil Appeal No. 83 of 1995

Bamburi Portland Cement Company Limited v Imranali Chandbhai Abdulhussein [1995] KECA 63 (KLR)

Court of Appeal
26 July 1995
JGJ. M. GachuhiROR. S. C. OmoloALA. A. Lakha
378 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to kill an appeal over illegible pages, choosing to fix the record instead—but made the complaining party pay costs.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Court of Appeal at Mombasa (Gachuhi, Omolo and Lakha, JJ.A.) delivered on 26 July 1995 in Civil Appeal No. 83 of 1995, an appeal by Bamburi Portland Cement Co. Ltd against a High Court judgment and decree (Wambilyangah, J., dated 7 December 1994 in H.C.C.C. No. 749 of 1992). At the start of the hearing, the respondent, through Dr. Khaminwa, complained that the record of appeal contained illegible pages rendering it incompetent, relying on Rule 13 of the Court of Appeal Rules, and moved to strike out the appeal. Mr. Khanna for the appellant explained that the original exhibits had been produced and withdrawn for use elsewhere, and sought to replace them with photocopies. Dr. Khaminwa then applied for an adjournment to obtain the exhibits and file a supplementary record. The court, in a single judgment of the bench, held that to put the record straight an adjournment should be granted, but condemned the respondent to costs since his firm had known of the position since April 1994. The Notice of Motion for striking out the appeal, which Dr. Khaminwa purported to withdraw, was dismissed with costs; adjournment costs of Kshs.5,000/= were awarded to the appellant, payable within 14 days failing which execution would issue; a supplementary record was to be filed within 45 days and the appeal listed for hearing in the next Mombasa session. The underlying appeal remained pending; no decision on the merits was made.

Questions the Court framed

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

  1. 1.Whether the record of appeal, containing illegible pages, was incompetent
  2. 2.Whether the Notice of Motion seeking striking out of the appeal should be dismissed
  3. 3.Whether an adjournment should be granted to enable the respondent to file a supplementary record

Key legal issues

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01

Competency of the record of appeal containing illegible pages

Holding

The court declined to strike out the appeal on account of illegible pages, instead granting an adjournment and directing the filing of a supplementary record

Reasoning

The respondent complained under Rule 13 that illegible pages rendered the record incompetent. The appellant explained that original exhibits had been produced and later withdrawn for use elsewhere. The court considered that, to put the record straight, an adjournment should be granted with the respondent condemned to costs, having known of the position since being served with the record in April 1994.

p. 1

Legal principles established

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  • A record of appeal containing illegible pages may be cured by filing a supplementary record rather than the appeal being struck out, and Rule 13 of the Court of Appeal Rules governs the competency of the record

Court orders

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  1. 1.The Notice of Motion for striking out the appeal dismissed with costs
  2. 2.Costs of adjournment assessed at Kshs.5,000/= awarded to the appellant
  3. 3.Supplementary record, if any, to be filed within 45 days
  4. 4.The said costs to be paid within 14 days failing which execution to issue
  5. 5.Appeal to be listed for hearing during the next session in Mombasa

The bench

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

JG
majority
RO
majority
AL
majority
On appeal from
High Court of Kenya at Mombasa
H.C.C.C. No. 749 of 1992
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal (not expressly stated; appeal from High Court judgment and decree)

Relief refused

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Striking out of the appeal

The court chose to put the record straight by allowing a supplementary record rather than strike out the appeal for illegible pages

p. 2

Costs

Notice of Motion dismissed with costs; costs of adjournment assessed at Kshs.5,000/= awarded to the appellant, to be paid within 14 days failing which execution to issue.

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 Notice of Motion filed in Court yesterday for striking out the appeal which Dr. Khaminwa purported to withdraw is hereby dismissed with costs.
p. 2Final orders - dismissal of striking-out motion
Costs of adjournment assessed at Kshs.5,000/= is awarded tot he appellant.
p. 2Final orders - adjournment costs
Supplementary record if any, be filed within 45 days from to-day.
p. 2Final orders - supplementary record
we feel that for the purpose of putting the record straight the adjournment should be granted
p. 1Adjournment to cure defective record

Issues in the judgment

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minor

Typographical errors in the judgment text ('tot he' for 'to the'; 'is April 1994' for 'in April 1994')

minor

The heading reads 'Ruling respondent through his advocate', an apparent garbled opening sentence

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Bamburi Portland Cement Company Limited v Imranali Chandbhai Abdulhussein [1995] KECA 63 (KLR)", Case Analysis (1995). Civil Appeal No. 83 of 1995. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1995/63/eng@1995-07-26

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