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Court of AppealStruck OutCivil Appeal (Application) No. 221 of 1997

KITUI COUNTY COUNCIL vs MWAKINI RANCHING (D.A) CO. LTD. [1998] KECA 124 (KLR)

Court of Appeal
13 February 1998
1,459 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an appeal because key documents were missing from the appeal record, confirming that rule 85(1)(f) is mandatory.

What this practically means

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Executive summary

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This was an application by the respondent, Mwakini Ranching (D.A) Co. Ltd, under rules 80 and 85 of the Court of Appeal Rules to strike out an appeal by Kitui County Council against a ruling of Aganyanya J of the High Court dated 27 May 1997 dismissing the Council's application to strike out the respondent's plaint and counterclaim. The applicant showed that annexures to the affidavits of Mr. Frederick N. Musyimi and Mr. Elijah M. Mutambuki, which were evidence in the court below, were absent from the record of appeal despite three supplementary records. Counsel for the appellant argued the annexures were immaterial because the learned judge did not rely on them, and sought to distinguish the Court's ruling in Edith Wagithi Chiira as possibly per incuriam of the proviso to rule 85(1). The Court held that rule 85(1)(f) is mandatory: all documents put in evidence at the hearing must form part of the record so the Court can consider the appeal in its totality. The proviso does not entitle parties to omit exhibits they consider irrelevant; the proper course is to include all exhibits and let the Court decide. The Court also rejected the argument that an affidavit adopting a previous affidavit by reference was not before the lower court. The appeal was struck out as incompetent, with costs of the application and the appeal awarded to the respondent applicant.

Questions the Court framed

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

  1. 1.Whether rule 85(1)(f) of the Court of Appeal Rules, requiring all documents put in evidence at the hearing to form part of the record of appeal, is mandatory
  2. 2.Whether the proviso to rule 85(1) permits a party to omit exhibits it considers irrelevant from the record
  3. 3.Whether the appeal record, lacking annexures to affidavits relied on, was defective and the appeal incompetent

Key legal issues

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01

Mandatory nature of rule 85(1)(f) of the Court of Appeal Rules

Holding

The requirement that all affidavits read and all documents put in evidence at the hearing form part of the record of appeal is mandatory; omission renders the record defective and the appeal incompetent.

Reasoning

The Court reasoned that it must have before it on appeal all documents put in evidence at the hearing so as to effectually consider the appeal in its totality; that is the purpose of the rule. The proviso excluding irrelevant documents does not license parties to make that judgment themselves. Three supplementary records still failed to include the missing annexures, so the defect was incurable and the appeal was struck out.

p. 2
02

Effect of adopting a previous affidavit by reference

Holding

An affidavit that craves leave to refer to and adopt a previous affidavit on record incorporates that affidavit, which is therefore part of the material before the court.

Reasoning

The appellant argued the adopted injunction affidavit was not before the learned judge since no leave had been granted. The Court rejected this as untenable: adopting an affidavit by reference merely avoids repetition, and the court is bound to consider all affidavits and pleadings on record. This defeated the argument that the missing annexures were immaterial.

p. 3

Legal principles established

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  • Rule 85(1)(f) is mandatory: all documents put in evidence at the hearing must form part of the record of appeal, and parties may not themselves omit exhibits they deem irrelevant.
  • Counsel and parties should include all exhibits in the record and leave questions of relevance or desirability of inclusion to the Court.
  • A party who craves leave to refer to a previous affidavit on record adopts its contents, and the Court is bound to look at all affidavits and pleadings on record.

Court orders

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  1. 1.The appeal is struck out as incompetent
  2. 2.The respondent applicant is awarded the costs of the application and the appeal

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. 5106 of 1993
Jurisdiction invoked
Rules of this Court, rules 80 and 85 (application to strike out an appeal)

Relief refused

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The appellant's attempt to have the appeal heard on only the factors considered by the learned judge and the application remitted for rehearing

The Court held this would be an unsatisfactory way of dealing with the matter given the defective record

p. 3

Costs

The respondent applicant will have the costs of the application and the appeal.

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.

There is and can be no doubt that the requirement in rule 85(1)(f) of the Rules is mandatory and for a good reason.
Mandatory content of record of appeal
Counsel or parties should not take upon themselves the onus of omitting an exhibit or annexure from the record lest they face the situation such as has arisen in this case.
p. 4Warning to counsel on omitting exhibits
The upshot of all this is that the appeal before us is incompetent and is therefore ordered struck out. The respondent applicant will have the costs of the application and the appeal.
p. 4Final 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, "KITUI COUNTY COUNCIL vs MWAKINI RANCHING (D.A) CO. LTD. [1998] KECA 124 (KLR)", Case Analysis (1998). Civil Appeal (Application) No. 221 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/124/eng@1998-02-13

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