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Court of AppealAllowedCivil Appeal (Application) No. 183 of 1998

BONIFACE KAGUO MWANGI vs CONTRATOURS LIMITED,SANKEN LIMITED [1999] KECA 153 (KLR)

Court of Appeal
27 April 1999
182 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal struck out an appeal because the appellant left the full court proceedings out of the appeal record.

What this practically means

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Executive summary

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This is a short ruling of the Court of Appeal at Nairobi (Kwach, Tunoi and Lakha, JJ.A.) delivered on 27th April 1999 in Civil Appeal (Application) No. 183 of 1998. The respondents, Boniface Kaguo Mwangi and Contratours Limited, applied under rule 80 of the Court of Appeal Rules to strike out the notice of appeal and the appeal lodged by Sanken Limited on the ground that the record of appeal did not include the full proceedings, in breach of rule 85(1)(d) of the Rules. The court found that the proceedings were admittedly not included in the record and rejected any suggestion that the appellant could selectively compile the record: under sub-rule 85(3) it is not for the appellant to decide whether a document is relevant or necessary. The application accordingly succeeded and the appeal was struck out with costs, including the costs of the motion filed on 26th November 1998. The ruling binds lower courts and parties to the requirement that a record of appeal must contain the full proceedings, and confirms that striking out is the sanction for breach of rule 85(1)(d). No external authorities were cited and the bench was unanimous, delivering a single ruling of the court.

Questions the Court framed

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

  1. 1.Whether the record of appeal should be struck out for breach of rule 85(1)(d) of the Court of Appeal Rules in that it does not include the full proceedings
  2. 2.Whether an appellant may unilaterally decide which documents are relevant or necessary for inclusion in the record of appeal

Key legal issues

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01

Omission of the full proceedings from the record of appeal

Holding

The record of appeal must include the full proceedings as required by rule 85(1)(d); failure to do so justifies striking out the notice of appeal and the appeal.

Reasoning

The court noted that the proceedings were admittedly not included in the record. Under sub-rule 85(3), the appellant cannot unilaterally determine the relevance or necessity of documents; the full proceedings must be included. The omission was therefore a breach of the Rules warranting striking out the appeal, with costs to the respondent.

p. 2

Legal principles established

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  • A record of appeal that omits the full proceedings breaches rule 85(1)(d) and is liable to be struck out; it is not for the appellant to decide whether a document is relevant or necessary for the record.

Court orders

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  1. 1.The application succeeds
  2. 2.The appeal is struck out
  3. 3.Costs awarded to the respondent, including the costs of the motion filed on 26th November, 1998

The bench

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

majority
majority
majority
Jurisdiction invoked
Rule 80 of the Court of Appeal Rules (application to strike out a notice of appeal and 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.

This is an application under rule 80 of the Rules of this Court to strike out the notice of appeal and the appeal for breach of the provisions of rule 85(1)(d) in that the record of appeal does not include the full proceedings.
p. 2Nature of the application
it is not for the appellant to decide whether a document is relevant or necessary in view of sub-rule 85(3) of the Rules
p. 2Duty to include full proceedings in the record
Accordingly, the application succeeds. The appeal is struck out with costs including the costs of the motion filed on 26th November, 1998.
p. 2Final orders 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, "BONIFACE KAGUO MWANGI vs CONTRATOURS LIMITED,SANKEN LIMITED [1999] KECA 153 (KLR)", Case Analysis (1999). Civil Appeal (Application) No. 183 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/153/eng@1999-04-27

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