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Court of AppealStruck OutCivil Appeal No. 32 of 1996

Achelis Kenya Limited v Francis Nyakaba Makebo [1997] KECA 3 (KLR)

Court of Appeal
22 February 1997
ALA. A. LakhaGPG. S. PallSBS. E. Bosire
217 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 appellant missed procedural steps, showing strict compliance with appeal rules is essential.

What this practically means

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Executive summary

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The Court of Appeal at Nairobi (Lakha, Pall and Bosire, JJ.A) struck out Civil Appeal No. 32 of 1996 by Achelis Kenya Limited against Francis Nyakaba Makebo as incompetent. The appeal was brought against a judgment and decree of the High Court at Eldoret (Nambuye J) dated 30th November, 1995 in H.C.C. No. R62 of 1992. The court identified two procedural defects. First, although the appeal was against a judgment dated 30th November, 1995, the certified decree on the record was dated 9th February, 1996; and the appellant's request for certified copies of the proceedings had not been copied to the respondent, in breach of rule 81 of the Court of Appeal Rules. That breach meant the appellant could not rely on the automatic extension of time for filing the appeal, so the appeal was out of time. Second, none of the exhibits produced in the superior court formed part of the record of appeal; the court held that such exhibits are primary documents under rule 85(1)(f) and cannot be brought on record by way of a supplementary record. On both grounds the appeal was incompetent and was struck out, with no order as to costs. The judgment was delivered as a single order of the full bench on 22nd February, 1997 and binds the High Court and subordinate courts on the rule 81 and rule 85(1)(f) propositions.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appeal was properly on record, given that the certified decree is dated 9th February, 1996 and the request for certified proceedings was not copied to the respondent in breach of rule 81
  2. 2.Whether exhibits produced in the superior court, not included in the primary record, could be brought on record by way of a supplementary record under rule 85(1)(f)

Key legal issues

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01

Extension of time for filing the appeal

Holding

Because the appellant breached rule 81 by not copying the request for certified proceedings to the respondent, no automatic extension of time for filing the appeal was available.

Reasoning

The appeal was against a judgment dated 30th November, 1995, yet the certified decree on record was dated 9th February, 1996. The Court of Appeal treated compliance with rule 81 - copying the request for certified proceedings to the respondent - as a condition of the automatic extension of time for filing the appeal. The appellant's breach meant the appeal was filed out of time without a valid extension, rendering it incompetent.

p. 1
02

Contents of the record of appeal and supplementary records

Holding

Exhibits produced in the superior court are primary documents under rule 85(1)(f) and cannot be introduced by way of a supplementary record.

Reasoning

None of the exhibits produced in the superior court formed part of the record of appeal. The court held that such exhibits are primarily documents within rule 85(1)(f), meaning they must be included in the primary record of appeal. A party cannot cure their omission from the primary record by filing a supplementary record. The absence of the exhibits, combined with the defective extension of time, made the appeal incompetent.

p. 1

Legal principles established

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  • Where the request for certified copies of proceedings is not copied to the respondent in breach of rule 81, there is no automatic extension of time for filing the appeal.
  • Exhibits produced in the superior court that form part of the primary documents under rule 85(1)(f) cannot be brought on record by way of a supplementary record.

Court orders

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  1. 1.The appeal is struck out
  2. 2.No order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AL
majority

Wrote the judgment

GP
majority

Wrote the judgment

SB
majority

Wrote the judgment

On appeal from
High Court of Kenya at Eldoret
H.C.C. No. R62 of 1992
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over the High Court (judgment and decree dated 30th November, 1995)

Relief refused

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Hearing of the appeal on the merits

The appeal was incompetent: no automatic extension of time for filing the appeal and exhibits could not be added by supplementary record

p. 1

Costs

No order as to costs

Quotable passages

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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 request for certified copies of the proceedings was not copied to the respondent in breach of rule 81. So there is no automatic extension of time for filing the appeal.
p. 1Extension of time conditional on rule 81 compliance
They cannot be brought on record by way of a supplementary record.
p. 1Exhibits as primary documents under rule 85(1)(f)
For all these reasons, the appeal is incompetent. It is hereby struck out with no order as to costs.
p. 1Final orders - striking out of incompetent appeal

Issues in the judgment

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minor

The judgment is a brief 'ORDER OF THE COURT' striking out the appeal; the underlying High Court judgment is not discussed, so priorDecisionTreatment is recorded as not_applicable.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Achelis Kenya Limited v Francis Nyakaba Makebo [1997] KECA 3 (KLR)", Case Analysis (1997). Civil Appeal No. 32 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/3/eng@1997-02-22

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