HUSSAMUDIN GULAMHUSSEIN POTHIWALA(Administrator, Trustee and Executor of the Estate of the late GULAMHUSSEIN POTHIWALA ) v KIDOGO BASI HOUSING CORPORATIVE SOCIETY LIMITED AND 31 OTHERS [2007] KECA 62 (KLR)

REPUBLIC OF KENYA

COURT OF APPEAL AT MALINDI

CIVIL APPEAL APPLI 330 OF 2003

HUSSAMUDIN GULAMHUSSEIN POTHIWALA

(Administrator, Trustee and Executor ofthe Estate of the late

GULAMHUSSEIN POTHIWALA …………..…..APPLICANT/RESPONDENT

AND

KIDOGO BASI HOUSING CORPORATIVE

SOCIETY LIMITED AND 31 OTHERS …………………….RESPONDENTS

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RULING OF THE COURT

By this application expressed to be brought under rules 80, 85 and 42of the Court of Appeal Rules, the applicants who are the respondents in the appeal, move the Court to strike out Civil Appeal No. 330 of 2003 on the ground that the decree the subject matter of the appeal is defective in that it is wrongly dated.  The applicants state that the judgment is dated 8th day of December, 1997 but was delivered on 9th December, 1997.  Thus, they aver that no judgment having been delivered on 8th December, 1997, the date given on the decree and on the Notice of Appeal i.e 9th December, 1997 is wrong.  They contend therefore that in the circumstances the appeal is against a non-existent decree.  The applicants further submit that the error or omission to insert the correct date in the decree contravenes Order XX rule 7 (1) of the Civil Procedure Rules which mandates that a decree shall bear the date of the day on which the judgment was delivered.

The records of appeal are bulky and untidy due to multiple varied and sometimes frivolous applications obviously meant to delay expeditious disposal of the appeal.  However, we have carefully gone through the records.  They show that the same objections now raised had been raised before this Court and were conclusively determined in Civil Appeal (Application) No. 268 of 2002 and by an order of the Court made on 18th July, 2003, it was recorded:

“Mr. Gikandi concedes very properly in our view that this appeal is incompetent in the absence of a certified copy of the decree.  This omission is fatal and renders the appeal incurably defective.  Accordingly, it is struck out with costs including costs of this application.”

The matter directly and substantially in issue in that application was the validity of the decree and it having been raised was heard and finally decided by the Court. The validity of the same decree cannot again be raised herein for to do so would amount to an abuse of the court process.  We think therefore that this application is misconceived and should be struck out.  We so order.

In the result the Notice of Motion dated 16th January, 2004 is hereby ordered struck out with costs.

Dated and delivered at Mombasa this 27th day of July, 2007.

P.K. TUNOI

…………………….

JUDGE OF APPEAL

S.E.O. BOSIRE

……………………..

JUDGE OF APPEAL

P.N. WAKI

……………………..

JUDGE O APPEAL

I certify that this

is a true copy of the original.

DEPUTY REGISTRAR