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Court of AppealStruck OutCivil Appeal (Application) No. 80 of 1999

PEPCO CONSTRUCTION COMPANY LIMITED v CARTER & SONS LIMITED [2000] KECA 275 (KLR)

Court of Appeal of Kenya
24 March 2000
JGJ. E. GicheruASA. B. ShahEOE. Owuor
1,559 words in judgment
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The bottom line

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Sloppy appeal paperwork proved fatal: Kenya's Court of Appeal struck out Carter & Sons' appeal, leaving a Ksh. 7.2 million judgment intact.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Gicheru, Shah and Owuor, JJ.A) on an application by Pepco Construction Company Limited, the successful plaintiff below, to strike out the notice of appeal and appeal of Carter & Sons Limited, the third defendant, from a judgment of Shields J dated 26 November 1992 in H.C.C.C No. 5638 of 1989 awarding Ksh. 7,200,000 jointly and severally against three defendants. The applicant attacked the notice of appeal on three fronts: it was headed 'Notice of Intended Appeal', a document unknown to the Rules; it was filed in the name of Pepco Construction & Transport Company Limited, a name amended by order of the trial judge before judgment, putting it at variance with the decree; and the record of appeal was riddled with typing errors, omitted paragraphs, and omitted an exhibit (the record of Civil Appeal No. 84 of 1990) admitted in evidence at trial. The court agreed with all three complaints. It held that rule 74(6) requires a notice substantially in Form D and that a 'Notice of Intended Appeal' is not that document; that the naming error and the record defects were incurable, not amendable under rule 44; and that omission of an admitted exhibit breached the mandatory rule 85(1)(f) and could not be cured by a supplementary record. Because a valid Notice of Appeal is the primary document conferring jurisdiction on the Court, its absence rendered the appeal incompetent. The appeal was struck out with costs to the applicant, who also received the costs of the application. The High Court judgment itself was not disturbed.

Questions the Court framed

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

  1. 1.Whether a document headed 'Notice of Intended Appeal' conforms to rule 74(6) and Form D of the first schedule to the Court of Appeal Rules
  2. 2.Whether the Notice of Appeal filed in the name of Pepco Construction & Transport Company Limited, a name amended before judgment, was valid
  3. 3.Whether the record of appeal was defective for numerous errors, omissions and whole paragraphs left out contrary to rule 85(1)(d)
  4. 4.Whether omission of an admitted exhibit (the record of Civil Appeal No. 84 of 1990) from the record of appeal breached rule 85(1)(f) and rendered the appeal incompetent

Key legal issues

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01

Validity of the Notice of Appeal

Holding

The document headed 'Notice of Intended Appeal' and filed in the name of the wrong party contravened rule 74 and was incurably defective, rendering the appeal incompetent.

Reasoning

Rule 74(1) requires a person desiring to appeal to give notice in writing lodged with the registrar, and rule 74(6) requires it to be substantially in Form D. A 'Notice of Intended Appeal' is not the envisaged document. The notice also named Pepco Construction & Transport Company Limited, a name amended by order of Shields J before judgment, putting it at variance with the decree. The errors were not curable under rule 44, no amendment having been sought.

p. 3
02

Completeness of the record of appeal

Holding

The numerous typing errors, misspellings, gaps and omitted paragraphs made the record defective under rule 85(1)(d).

Reasoning

Counsel for the respondent did not deny the errors but argued they caused no prejudice. The court held that errors so numerous, including whole paragraphs left out, are not the kind that leave the appeal unaffected; they are serious errors rendering the record defective under rule 85(1)(d).

p. 3
03

Omission of an admitted exhibit

Holding

Omitting the record of Civil Appeal No. 84 of 1990, an exhibit admitted in evidence, breached the mandatory rule 85(1)(f) and made the record incurably defective.

Reasoning

The exhibit had been produced and admitted by consent and the learned Judge's own judgment referred to photographs in it. Being part of the proceedings, it was a primary document that had to be in the record of appeal; it could not be introduced by supplementary record, so the appeal was incompetent.

p. 3

Legal principles established

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  • A Notice of Appeal is the primary document conferring jurisdiction on the Court of Appeal; a record of appeal must contain a valid Notice of Appeal, failing which the appeal is incompetent.
  • There is no such document known to the Rules as a 'Notice of Intended Appeal'; a notice not substantially in Form D under rule 74(6) is invalid.
  • An exhibit admitted in evidence in the superior court is part of the proceedings and must be included in the record of appeal; its omission breaches rule 85(1)(f) and cannot be cured by a supplementary record.

Court orders

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  1. 1.The appeal is struck out
  2. 2.Costs of the appeal to the applicant
  3. 3.The applicant to have the costs of this application

The bench

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

JG
majority
AS
majority
EO
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C No. 5638 of 1989
Jurisdiction invoked
Rules 42, 74, 80 and 85 of the Court of Appeal Rules (application to strike out notice of appeal and appeal)

Relief refused

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Respondent's implicit plea to sustain the appeal despite defects in the notice and record

The court held the defects incurable and not amendable under rule 44, rendering the appeal incompetent

Costs

Appeal struck out with costs to the applicant; the applicant will also have the costs of the application.

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.

A Notice of Appeal is what gives this Court jurisdiction in any appeal. It is a primary document in terms of rule 85(1) of the Rules. A record of appeal must contain a valid copy of the Notice of Appeal.
p. 3Jurisdictional role of the Notice of Appeal
The upshot of the foregoing is that this appeal is incompetent and is hereby struck out with costs to the applicant. The applicant will have the costs of this application also.
p. 3Final orders - appeal struck out with costs
It was a primary document and by not including it in the present record of appeal, the mandatory provision of rule 85 (1) (f) was breached. It cannot be introduced by way of supplementary record of appeal.
p. 3Mandatory inclusion of admitted exhibits in the record of appeal

Issues in the judgment

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minor

The judgment refers to the missing exhibit inconsistently as 'the record of Civil Appeal No. 80 of 1999' in the applicant's complaint and as 'the record of appeal in Civil Appeal No. 84 of 1990' in the court's own analysis.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "PEPCO CONSTRUCTION COMPANY LIMITED v CARTER & SONS LIMITED [2000] KECA 275 (KLR)", Case Analysis (2000). Civil Appeal (Application) No. 80 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/275/eng@2000-03-24

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