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Court of AppealStruck OutCivil Appeal No. 8 of 1992

ASSOCIATED ARCHITECTS vs ALL AFRICA CONFERENCE OF CHURCHES [1997] KECA 279 (KLR)

Court of Appeal
17 January 1997
153 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~1 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal struck out an appeal because the record lacked a certified copy of the decree, confirming this requirement is mandatory.

What this practically means

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Executive summary

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In a brief ruling delivered at Nairobi on 17 January 1997, a three-judge bench of the Court of Appeal (Kwach, Akiwumi and Tunoi, JJ.A.) struck out Civil Appeal No. 8 of 1992 by Associated Architects against All Africa Conference of Churches. The appeal, brought from a judgment of the High Court of Kenya at Nairobi (Justice Aragon) dated 9 January 1990 in H.C.C.C. No. 4423 of 1988, was found to be fatally defective because the record of appeal did not contain a certified copy of the decree appealed against, a document the court held to be mandatorily required by Rule 85(1)(h) of the Court of Appeal Rules. The court characterised the omission as rendering the appeal incurably defective and therefore incompetent, leaving no discretion but to strike it out. Notably, the court declined to make any order as to costs, so each party bears its own costs. The ruling is a single judgment of the whole court with no separate opinions or dissents. Its binding significance for lower courts and litigants lies in its confirmation that compliance with Rule 85(1)(h) is mandatory: an appeal filed without a certified copy of the decree is incompetent and will be struck out, however meritorious its underlying grounds might be.

Questions the Court framed

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

  1. 1.Whether an appeal whose record omits a certified copy of the decree appealed against, as mandatorily required by Rule 85(1)(h), is competent

Key legal issues

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01

Competence of an appeal lacking a certified copy of the decree

Holding

The omission of a certified copy of the decree from the record of appeal is a mandatory requirement whose breach renders the appeal incurably defective and incompetent, warranting striking out

Reasoning

Rule 85(1)(h) of the Court of Appeal Rules mandatorily requires that the record of appeal contain 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, so the defect could not be cured, and the only course open was to strike out the appeal, doing so without costs.

p. 2

Legal principles established

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  • An appeal whose record does not include a certified copy of the decree appealed against, as mandatorily required by Rule 85(1)(h) of the Court of Appeal Rules, is incurably defective and incompetent and must be struck out

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.

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 4423 of 1988
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal under the Court of Appeal Rules, Rule 85(1)(h)

Relief refused

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Prosecution of the appeal on the defective record

The record of appeal lacked the certified copy of the decree required by Rule 85(1)(h), rendering the appeal incurably defective and incompetent

p. 2

Costs

No order as to costs - each party to bear their own 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 record of appeal does not contain as mandatorily required by R.85 (1)(h) a certified copy of the decree appealed against. This makes the appeal incurably defective and therefore incompetent.
p. 2Mandatory content of record of appeal under Rule 85(1)(h)
It is hereby struck out but with no order as to costs. It is so ordered.
p. 2Final orders - striking out and costs

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, "ASSOCIATED ARCHITECTS vs ALL AFRICA CONFERENCE OF CHURCHES [1997] KECA 279 (KLR)", Case Analysis (1997). Civil Appeal No. 8 of 1992. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/279/eng@1997-01-17

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