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Court of AppealDismissedCivil Appeal No. 9 of 1994· [1996] KECA 90 (KLR)

Shabbir Esmail v Kenya Duty Free Complex

Court of Appeal of Kenya
29 October 1996
448 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to strike out an appeal, holding that procedural mistakes don't end a case unless the other side proves real prejudice.

What this practically means

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Executive summary

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This interlocutory ruling of the Court of Appeal at Nairobi (Kwach, Tunoi and Pall, JJA) disposed of a notice of motion by the Respondent, Kenya Duty Free Complex, seeking to strike out the Appellant's appeal from a ruling of the High Court (Mbito J) of 11 February 1993 in H.C.C.C. No. 3187 of 1992. The Respondent advanced two grounds: first, that the Appellant failed to comply with Order 20 rule 7 of the Civil Procedure Rules because the draft order was not given to the Respondent's counsel the mandatory 7 days for approval, the order having been signed by the Deputy Registrar on 26 January 1993; and second, that the record of appeal was incomplete, missing annexures to an affidavit and other documents. Counsel for the Respondent conceded that no prejudice was suffered by the non-compliance, and relied on an unnamed ruling of the Court of Appeal where grave prejudice had led to an appeal being held incompetent. The court held that absent prejudice, a party should not be shut out from a determination on the merits, and declined to strike out the appeal on the procedural ground. On the incomplete record, the court noted the Respondent could have sought a supplementary record under the applicable rule but had not done so. The application was dismissed; the Appellant was granted 30 days' leave to file a supplementary record of appeal, the appeal was stood over generally, and costs of the motion were made costs in the appeal.

Key legal issues

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01

Whether breach of Order 20 rule 7 of the Civil Procedure Rules (approval of draft orders) is fatal to an appeal

Holding

The breach is not fatal where no prejudice is suffered; the appeal should not be struck out on that ground alone.

Reasoning

Counsel for the Respondent conceded that no prejudice was suffered from the shortening of the 7-day approval period. The court distinguished the authority cited, where grave prejudice had been established. The overriding consideration is that parties should have their disputes determined on the merits rather than be shut out by procedural default absent demonstrated prejudice.

p. 1
02

Whether an incomplete record of appeal justifies striking out the appeal

Holding

No; the remedy is a supplementary record under the applicable rule, not striking out.

Reasoning

It was conceded that certain annexures to an affidavit and some other documents were missing from the record. The court held that the Respondent could have invoked the rule permitting a supplementary record but had not done so, and accordingly dismissed the application rather than striking out the appeal.

p. 1

Legal principles established

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  • Non-compliance with Order 20 rule 7 (approval of draft orders) does not render an appeal incompetent unless the opposing party demonstrates prejudice; a party should not be shut out from a determination on the merits absent prejudice.
  • An incomplete record of appeal is not, by itself, a ground for striking out an appeal where the deficiency can be cured by filing a supplementary record.

Court orders

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  1. 1.The Respondent's notice of motion to strike out the appeal is dismissed
  2. 2.Leave granted to the Appellant to file a supplementary record of appeal including all proceedings and affidavits within 30 days
  3. 3.The appeal stood over generally
  4. 4.Costs of the notice of motion to be costs in the appeal
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 3187 of 1992
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal under the Constitution and the Court of Appeal Rules (appeal from a ruling of the High Court; specific provision not stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Shabbir Esmail v Kenya Duty Free Complex", Case Analysis (1996). Civil Appeal No. 9 of 1994. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1996/90/eng@1996-10-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.