RULING OF THE COURT
Mohamed Aden Abdi, the respondent in Civil Appeal No. 190 of 2006, has moved this Court for an order striking out an appeal which is not disclosed in the body of the application. The application is however, brought in Civil Appeal No. 190 of 2006 and cites the appellants in that appeal, Abdi Nuru Omar, Alimohamed Haji T/A Delta Haulage Services Ltd as respondents. It is expressed to be brought under rules 42 and 85 of the Court of Appeal Rules and the reason given for seeking the orders sought is that the record of appeal does not include the exhibits which were produced at the trial as “mandatorily required to be included.”
At the hearing of the application, Mr. Otieno for the applicant submitted that documentary exhibits are primary documents and non-inclusion of them in the record of appeal renders that record incurably defective.
But Miss. Nungo for the respondents, while conceding that documentary exhibits are primary documents, submitted that the wording of the …