Pharmacy & Poisons Boa v Sipri Pharmaceuticals Limited & another [1999] KECA 7 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal because its record was missing key documents, confirming some filing defects cannot be fixed later.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the record of appeal, lacking a certified copy of the order appealed against, the originating chamber summons, certification as correct, and served out of time without leave, is incompetent and should be struck out under rule 80 of the Court of Appeal Rules
Key legal issues
#Whether defects in the record of appeal render the appeal incompetent
Omission of the certified order appealed against and of the originating chamber summons are incurable defects rendering the appeal incompetent, warranting striking out under rule 80; illegibility and lack of certification (defects 3 and 5) were not treated as incurable.
The respondent identified five defects in the record: absence of a certified copy of the order appealed against, absence of the originating chamber summons, lack of certification of the record, out-of-time service without leave, and illegibility. The court accepted counsel's submissions that all but defects 3 and 5 were serious and incurable, and that a supplementary record could not cure them, so the appeal was incompetent and was struck out with costs.
Legal principles established
#- An appeal whose record omits a certified copy of the order appealed against and the originating process is incompetent and liable to be struck out under rule 80 of the Court of Appeal Rules; such defects cannot be cured by merely filing a supplementary record of appeal.
Court orders
#- 1.The memorandum and record of appeal in Civil Appeal No. 87 of 1998 is struck out
- 2.Costs of the application to the respondent
- 3.The respondent is also awarded the costs of the Notice of Motion
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisumu
- H.C. Misc. C. No. 101 of 1997
- Jurisdiction invoked
- Court of Appeal Rules, rule 80 (application to strike out an appeal)
Relief refused
#Leave to cure the defects by filing a supplementary record of appeal
Some defects were held incurable and could not be cured by a supplementary record
Costs
Appeal struck out with costs to the respondent; the respondent will also have the costs of the Notice of Motion.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
some of these are serious defects which cannot be cured by merely filing a supplementary record of appeal
In the result we agree with Mr. Wasuna that the defects except No. 3 and 5 above are incurable. The consequence of this is that the appeal is incompetent and it is accordingly struck out with costs to the respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pharmacy & Poisons Boa v Sipri Pharmaceuticals Limited & another [1999] KECA 7 (KLR)", Case Analysis (1999). Civil Appeal 87 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/7/eng@1999-11-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.