Al-nasibh Trading Co Ltd v Dolphin Palms Limited Happy Twins Freight Forwarders Ltd Samuel Alex Ayieko Oyugi Margaret Akinyi Ayieko

Counsel shared a consensus that, to appreciate what the objection proceedings were about, the Court sitting on appeal would need to peruse the earlier judge's notes and judgment. The proceedings omitted from the record were those prior to 11 September 1995, long before the ruling appealed from dated 22 July 1997, and the omitted judgment of 24 June 1994 was the decision that triggered the objection proceedings culminating in that ruling. Documents integral to understanding the decision under appeal cannot be dispensed with.

Mrs Gudka, for the respondent, submitted that the proviso allows a party to determine and decide which documents are relevant or irrelevant without recourse to rule 3, which gives the Registrar or judge of the superior court discretion to exclude documents when application is made. The Court held the submission untenable: if correct, it would render rule 85(3) otiose or irrelevant. The proviso and rule 85(3) are therefore to be read and construed together.

Rule 80 was invoked because a step had not been taken by the appellant in the appeal; rules 85(1)(d) and (g) because the trial judge's notes of the hearing and the judgment or order of the court had not been included in the record of appeal. The omitted notes and judgment were found to be both necessary and relevant, so the record could not sustain the appeal. The Court accordingly struck out Civil Appeal No. 108 of 2001 as incompetent and awarded the first respondent the costs of the appeal and of the application.