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Court of AppealStruck OutCivil Appeal No. 24 of 1997· [1998] KECA 247 (KLR)

EDITH WAGITHI CHIIRA vs REBECCA WANGUI GICHUHI [1998] KECA 247 (KLR)

Court of Appeal of Kenya
15 January 1998
RKR.O. KwachALA.A. LakhaSBS.E.O. Bosire
251 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an appeal because exhibits from the High Court were missing from the record, confirming that Rule 85(1)(f) must be followed strictly.

What this practically means

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Executive summary

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This short ruling of the Court of Appeal at Nairobi (Kwach, Lakha and Bosire, JJ.A.) disposed of a motion by the respondent, appearing through Hon. Martha Karua, to strike out the appellant's appeal. The ground was that the exhibits produced in the High Court had not been included in the record of appeal, in breach of Rule 85(1)(f) of the Court of Appeal Rules. Counsel for the appellant, Mr. Kamonde, responded that the exhibits were not available, relevant or vital. The court rejected this: Rule 85(1)(f) is mandatory and makes no exception for such cases, and no direction had been made under Rule 85(3) excluding the documents from the record. The omission therefore rendered the appeal incurably defective and incompetent. The appeal was struck out with costs, including the costs of the respondent's application filed on December 16, 1997. The ruling is a concise but binding statement that compliance with Rule 85(1)(f) in compiling the record of appeal is not discretionary: an appellant who omits exhibits produced in the superior court cannot cure the defect by arguing irrelevance or unavailability, and the resulting appeal is liable to be struck out. The decision below (a High Court ruling in a succession cause) was not reviewed on its merits; the appeal failed on a procedural competence ground.

Key legal issues

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01

Whether omission of exhibits from the record of appeal renders an appeal incompetent

Holding

Yes. Rule 85(1)(f) is mandatory and its breach renders the appeal incurably defective and incompetent; the appeal is struck out.

Reasoning

Counsel for the respondent moved to strike out the appeal because the exhibits produced in the superior court were not included in the record of appeal. Counsel for the appellant argued the exhibits were not available, relevant or vital. The court held that Rule 85(1)(f) is mandatory, makes no exception for such cases, and no direction under Rule 85(3) had been made to exclude the documents. The appeal was therefore incompetent and was struck out with costs.

p. 2

Legal principles established

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  • Rule 85(1)(f) of the Court of Appeal Rules is mandatory: failure to include the exhibits produced in the superior court in the record of appeal renders the appeal incurably defective and incompetent, and no exception exists for exhibits said to be unavailable, irrelevant or non-vital absent a direction under Rule 85(3).

Court orders

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  1. 1.The appeal is struck out as incompetent
  2. 2.The appellant to pay the respondent's costs, including the costs of the application filed on December 16, 1997

Authorities

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Legislation

  • Court of Appeal RulesRule 85(1)(f)
  • Court of Appeal RulesRule 85(3)
On appeal from
High Court of Kenya at Nairobi
H.C.C.SUC.C. No. 467 of 1991
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal under the Constitution and the Court of Appeal Rules (Rule 85(1)(f) invoked on competence of the appeal)

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, "EDITH WAGITHI CHIIRA vs REBECCA WANGUI GICHUHI [1998] KECA 247 (KLR)", Case Analysis (1998). Civil Appeal No. 24 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/247/eng@1998-01-15

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