Lake Victoria Fish Ltd v Schotu Pabari t/a Pabari Hardware
The bottom line
#Kenya's Court of Appeal struck out an appeal because the record omitted a certified copy of the order appealed against, and a later supplementary record could not fix it.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an appeal filed without inclusion of a certified copy of the order appealed against in the original record of appeal is incurably defective
- 2.Whether a supplementary record of appeal can cure that defect
Key legal issues
#Whether the appeal could stand where the original record of appeal omitted a certified copy of the order appealed against
The appeal was incurably defective and was struck out; the defect could not be cured by a supplementary record, which the Rules do not allow.
The Court treated the certified copy of the order appealed against as an essential component of the record of appeal. Its absence from the original filing rendered the appeal fatally defective. Because Rule 85(2)(A) of the Court of Appeal Rules does not permit the filing of a supplementary record, the appellant's attempt to file one could not cure the defect, leaving striking out as the only course.
Whether costs should be awarded against the appellant on striking out
No costs were awarded because the respondent had not applied for them under rule 80 of the Court's Rules.
Although the appeal was struck out, the Court declined to award costs to the respondent. It reasoned that costs under rule 80 require an application by the respondent, and no such application had been made. The appeal was therefore struck out with no orders as to costs, leaving each party to bear its own costs.
Legal principles established
#- An appeal filed without a certified copy of the order appealed against included in the original record of appeal is incurably defective and must be struck out.
- A supplementary record of appeal cannot cure the defect of a missing certified copy of the order appealed against, as the Court's Rules do not permit filing of such a supplementary record.
Court orders
#- 1.The appeal is struck out
- 2.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Court of Appeal Rules (Rule 85(2)(A) as printed; Rule 80)
Relief refused
#Costs against the appellant
The respondent made no application for costs under rule 80 of the Court's Rules
Costs
No orders as to costs; each party to bear their own costs (no costs awarded as there was no application by the respondent under rule 80)
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.
The original record of appeal was filed without inclusion of a certified copy of the order appealed against. The appeal is therefore incurably defective.
The attempt to file a supplementary record of appeal does not cure the defect as Rule 852(A) of the Rules of this court does not allow filing of such a supplementary record.
The appeal is therefore struck out with no orders as to costs.
No costs are awarded as there has been no application to that effect by the respondent under rule 80 of the Rules of this court.
Issues in the judgment
#The rule number is printed as 'Rule 852(A)', which appears to be a typographical rendering of Rule 85(2)(A) of the Court of Appeal Rules; the brief reproduces the judgment as printed.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lake Victoria Fish Ltd v Schotu Pabari t/a Pabari Hardware", Case Analysis (1996). Civil Appeal No. 3 of 1994. Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.