CORPORATE INSURANCE COMPANY LIMITED vs HAMID CHEMICALS LIMITED [1998] KECA 201 (KLR)

REPUBLIC OF KENYA

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: GICHERU, TUNOI & LAKHA, JJ.A.)

CIVIL APPEAL NO. 54 OF 1997

BETWEEN

CORPORATE INSURANCE COMPANY LIMITED ...................APPELLANT

AND

HAMID CHEMICALS LIMITED ...............................RESPONDENT

(Appeal from the Judgment and Decree of the High Court of Kenya at Nairobi (Justice Pall) dated 16th February, 1993 in

H.C.C.C. NO. 1824 OF 1987)

****************

RULING OF THE COURT

Mr. Gautama for the Respondent has applied to strike out the appeal as incompetent since the record does not include a document produced as Ex MHI and referred to at p. 19 of the record, Mr. Gautama relies on it as he did in the superior court. The witness was cross-examined on it and we are satisfied that the document is vital to the proper adjudication of this appeal. Its omission from the record, we are satisfied, is in breach of the mandatory provisions of rule 85(1)(f) of the Rules of this Court. The defeat is fatal and renders the appeal incurably defective as this document, in view of the provisions of rule 85(2A), cannot be included in a Ascucpoprldeimnegnltya,r y irte cfoorldl oowfs aptpheaatl .t he appeal must be as it hereby is struck out but with no order as to costs.

Dated and delivered at Nairobi this 9th day of July, 1998.

J.E. GICHERU

.................

JUDGE OF APPEAL

P.K. TUNOI

..................

JUDGE OF APPEAL

A.A. LAKHA

..................

JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR