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Court of AppealStruck OutCivil Appeal No. 59 of 1991· [1996] KECA 143 (KLR)

B.R. Aggarwal v Munshiram & Company Limited [1996] KECA 143 (KLR)

Court of Appeal
15 February 1996
JGJ. E. GicheruPhilip Kiptoo TunoiP. K. TunoiALA. A. Lakha
166 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an appeal because the record omitted a certified copy of the decree, showing appeal paperwork rules are strictly enforced.

What this practically means

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Executive summary

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This is a short ruling of the Court of Appeal at Nairobi (Gicheru, Tunoi and Lakha, JJ.A) delivered on 15 February 1996 in Civil Appeal No. 59 of 1991, an appeal by B.R. Aggarwal, as executor of the late Lekraj Aggarwal, against Munshiram & Company Limited, from the judgment of the High Court (Pall, J) dated 17 October 1990 in Civil Case No. 1804 of 1985. The court did not reach the merits. On examining the record, it found that the record of appeal did not include a certified copy of the decree appealed against, in breach of the mandatory provision of Rule 85(1)(h) of the Court of Appeal Rules. The court characterized the omission as fatal and the resulting defect as incurable, rendering the record incurably incompetent. It therefore struck out the appeal with costs. The ruling binds lower courts and parties to strict compliance with Rule 85(1)(h): a record of appeal lacking a certified decree is incompetent and cannot sustain an appeal, and the defect cannot be cured. No authorities were cited and no separate opinions were written; the ruling is a single judgment of the whole court. The decision below was not disturbed on the merits, as the appeal was struck out on a procedural competency ground.

Key legal issues

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01

Competency of a record of appeal lacking a certified copy of the decree

Holding

The omission of a certified copy of the decree appealed against is a fatal, incurable defect requiring the appeal to be struck out.

Reasoning

Rule 85(1)(h) of the Court of Appeal Rules mandatorily requires the record of appeal to include a certified copy of the decree appealed against. The appellant's record did not include it. The court treated the requirement as mandatory rather than directory, held the omission fatal and the defect incurable by amendment, and struck out the appeal with costs to the respondent.

p. 2

Legal principles established

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  • A record of appeal in the Court of Appeal must include a certified copy of the decree appealed against; omission of the certified decree breaches the mandatory provision of Rule 85(1)(h) and renders the record incurably incompetent, warranting striking out of the appeal.

Court orders

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  1. 1.The appeal is struck out with costs

Authorities

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Legislation

  • Court of Appeal RulesRule 85(1)(h)
On appeal from
High Court of Kenya at Nairobi
Civil Case No. 1804 of 1985
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal under the Constitution and the Court of Appeal Rules (Rule 85(1)(h))

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, "B.R. Aggarwal v Munshiram & Company Limited [1996] KECA 143 (KLR)", Case Analysis (1996). Civil Appeal No. 59 of 1991. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1996/143/eng@1996-02-15

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