AL-NASIBH TRADING CO LTD vs DOLPHIN PALMS LIMITED,HAPPY TWINS FREIGHT FORWARDERS LTD,SAMUEL ALEX AYIEKO OYUGI,MARGARET AKINYI AYIEKO [2003] KECA 119 (KLR)
The bottom line
#Kenya's Court of Appeal threw out Dolphin Palms' appeal because its file omitted the judge's notes and judgment needed to understand the case.
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 appeal should be struck out under rule 80 of the Court of Appeal Rules because a step has not been taken by the appellant in the appeal.
- 2.Whether the record of appeal is incompetent under rule 85(1)(d) and (g) for omitting the trial judge's notes of the hearing and the judgment or order of the court.
- 3.Whether the judge's notes preceding the ruling of 22 July 1997 and the judgment of 24 June 1994, omitted from the record, are necessary and relevant to the consideration of the appeal.
- 4.Whether the proviso to rule 85(1) allows a party to determine and decide which documents are relevant or irrelevant to the appeal without recourse to rule 3, and how the proviso relates to rule 85(3).
Key legal issues
#Whether the judge's notes preceding the ruling of 22 July 1997 and the judgment of 24 June 1994, omitted from the record of appeal, are necessary and relevant to the appeal.
Yes. Both the omitted judge's notes and the omitted judgment are not only necessary but relevant to the consideration of the appeal; their omission renders the record defective.
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.
Whether the proviso to rule 85(1) of the Court of Appeal Rules permits a party unilaterally to determine which documents are relevant or irrelevant to an appeal without recourse to rule 3.
No. The proviso to rule 85(1) must be read and construed together with rule 85(3); a contrary construction would render rule 85(3) otiose or irrelevant.
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.
Whether the appeal was competent where no step had been taken under rule 80 and the record omitted the judge's notes and judgment required by rules 85(1)(d) and (g).
No. The appeal was incompetent and was struck out.
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.
Legal principles established
#- An appeal whose record omits the trial judge's notes of the hearing and the judgment or order under appeal, where those documents are necessary and relevant to the consideration of the appeal, is incompetent and liable to be struck out under rules 80 and 85(1)(d) and (g) of the Court of Appeal Rules.
- The proviso to rule 85(1) of the Court of Appeal Rules does not permit a party unilaterally to decide which documents are relevant or irrelevant to an appeal without recourse to rule 3; the proviso must be read and construed together with rule 85(3).
Court orders
#- 1.Civil Appeal No. 108 of 2001 struck out for being incompetent.
- 2.The appellant to pay the first respondent the costs of the appeal and of the application.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- H.C.C.S. NO. 234 OF 1994
- Jurisdiction invoked
- Rules 80 and 85(1)(d) and (g) of the Court of Appeal Rules (application to strike out the record of appeal in a civil appeal from the High Court)
Relief refused
#The first respondent's submission that the proviso to rule 85(1) allows a party to determine and decide which documents are irrelevant or relevant to the appeal without recourse to rule 3
The Court held the submission could not be right because it would render rule 85(3) otiose or irrelevant; the proviso is to be read and construed together with rule 85(3)
Costs
The appellant shall pay to the first respondent the costs of the appeal and of the application.
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.
Accordingly, Civil Appeal No. 108 of 2001 is struck out for being incompetent. The appellant shall pay to the first respondent the costs of the appeal and of the application.
It is therefore our view that both the judge's notes preceding the ruling of July 22, 1997 and the judgment of June 24, 1994 are not only necessary but relevant in the consideration of the appeal.
We are of the view that the proviso to rule 85 (1) is to be read and construed together with rule 85 (3) and we so hold.
We do not think that Mrs Gudka's submission can possibly be right because if it is, it will render rule 85 (3) otiose or irrelevant.
There is some consensus among counsel for these parties that in order to appreciate what the objection proceedings were all about, this Court sitting on appeal, would need to peruse the earlier judge's notes and judgment.
Issues in the judgment
#The passage stating the rule 85(1)(d) and (g) grounds is garbled in the source text, apparently from two sentences transcribed over each other; the substance (the omitted proceedings and judgment) is restated in the following sentences
The caption styles Dolphin Palms Limited and the three other opposite parties collectively as 'RESPONDENTS', yet the ruling refers throughout to 'the appellant' whose appeal is struck out and who is ordered to pay costs, without naming the appellant in the caption; the appellant's identity (inferred to be Dolphin Palms Limited, first-named opposite party) is not designated on the face of the caption
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "AL-NASIBH TRADING CO LTD vs DOLPHIN PALMS LIMITED,HAPPY TWINS FREIGHT FORWARDERS LTD,SAMUEL ALEX AYIEKO OYUGI,MARGARET AKINYI AYIEKO [2003] KECA 119 (KLR)", Case Analysis (2003). Civil Appeal (Application) No. 108 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2003/119/eng@2003-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.