MALINDI AIR SERVICES & ANOTHER vs HALIMA ABDINOOR HASSAN [1999] KECA 169 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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
#Whether an Order that omits a paragraph of the Ruling below renders the appeal incompetent
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.
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.
Legal principles established
#- 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
#- 1.Civil Appeal No. 152 of 1999 struck out
- 2.Costs of the appeal awarded to the respondent, including the costs of the Notice of Motion
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
Costs
Appeal struck out with costs, including the costs of the Notice of Motion
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.
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.
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.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.