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Court of AppealStruck OutCivil Appeal No. 97 of 2001

Mansur Jiwani (Sued Wrongly as T/A Computer City) v Ovidian Advertising & Design Ltd [2002] KECA 205 (KLR)

Court of Appeal of Kenya
6 May 2002
JGJ.E. GicheruROR.S.C. OmoloALA.A. Lakha
230 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an appeal because the appellant omitted a key High Court ruling from the record and never challenged it.

What this practically means

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Executive summary

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This short ruling of the Court of Appeal at Nairobi (Gicheru, Omolo and Lakha, JJ.A.) disposed of Civil Appeal No. 97 of 2001, an appeal by Mansur Jiwani, sued wrongly as trading as Computer City, against a ruling of the High Court at Milimani Commercial Courts (Moijo Ole Keiwua, J.) dated 15 February 1999 in H.C.C.C. No. 459 of 1997. Counsel for the appellant complained that parts of an affidavit should have been struck out. The court held that this issue had already been considered and canvassed before Hayanga, J., who had refused to strike out the material in a ruling that was not included in the record of appeal. No notice of appeal had been filed against that ruling, so the matters were not open to the appellant. The court further held that the ruling of Hayanga, J. was a primary document which should have been included in the record, and that its omission rendered the record of appeal incompetent. The court therefore struck out the appeal with costs to the respondent. The judgment was delivered at Nairobi on 6 May 2002 and signed by all three members of the bench; it contains no separate opinions, no cited authorities, and no statutory provisions.

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 was competent given the omission of the ruling of Hayanga, J.
  2. 2.Whether the appellant could re-argue matters already adjudicated upon by Hayanga, J. and not appealed

Key legal issues

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01

Competency of the record of appeal

Holding

The appeal was struck out because the record omitted the ruling of Hayanga, J., a primary document, rendering the record incompetent.

Reasoning

The appellant's complaint concerned parts of an affidavit that Hayanga, J. had already refused to strike out. That ruling was not included in the record of appeal and no notice of appeal was filed against it. The court held the ruling was a primary document whose absence made the record incompetent, and the matters were not open to the appellant.

p. 2
02

Re-litigation of matters already adjudicated

Holding

The appellant could not re-argue the striking-out of parts of the affidavit since that issue had been decided by Hayanga, J. and was not appealed.

Reasoning

Counsel for the appellant complained that parts of the affidavit should have been struck out, but the court noted this issue had been canvassed and refused by Hayanga, J. No notice of appeal was given against that ruling, so the matters were not open to the appellant on this appeal.

p. 2

Legal principles established

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  • A record of appeal that omits a primary document, such as a ruling of the High Court that is central to the issues raised, is incompetent.
  • A party may not re-argue on appeal matters already adjudicated upon where no appeal or notice of appeal was lodged against that earlier ruling.

Court orders

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  1. 1.The appeal is struck out with costs to the respondent

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 Milimani Commercial Courts
H.C.C.C. No. 459 of 1997
Jurisdiction invoked
First appeal to the Court of Appeal under the Constitution and the Appellate Jurisdiction Act (provision not stated in the judgment)

Relief refused

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Appellant's complaint that parts of the affidavit should have been struck out

The matter had already been considered and refused by Hayanga, J. in a ruling not appealed against, and the ruling was a primary document omitted from the record, rendering the appeal incompetent

p. 2

Costs

Costs to the respondent

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 ruling of Hayanga, J. should have been included as it was a primary document. Not having been included it renders this record of appeal incompetent.
p. 2competency of record of appeal
Mr. Ngunjiri did not appeal against that ruling: no notice of appeal was given with regard to that and freely argued although already adjudicated upon. They were matters not open to him
p. 2matters already adjudicated not open on appeal
Accordingly, the appeal is struck out with costs to the respondent.
p. 2final orders

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, "Mansur Jiwani (Sued Wrongly as T/A Computer City) v Ovidian Advertising & Design Ltd [2002] KECA 205 (KLR)", Case Analysis (2002). Civil Appeal No. 97 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/205/eng@2002-05-06

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