CALTEX OIL (KENYA) LIMITED v RONO LIMITED [2000] KECA 370 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal because the record omitted an affidavit's annexure, confirming that incomplete appeal records are fatal.
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 appeal should be struck out for having been filed outside the time prescribed by the Court of Appeal Rules
- 2.Whether the record of appeal, which omitted the annexure to Mr. Esmail's affidavit, breached the mandatory provisions of Rule 85(1)(f) of the Court of Appeal Rules, rendering the appeal incompetent
Key legal issues
#Whether omission of an annexure to an affidavit in the record of appeal breaches Rule 85(1)(f) and renders the appeal incompetent
Yes - the annexure is an integral part of the affidavit; without it the affidavit is incomplete and the mandatory provision is breached, making the appeal incompetent and liable to be struck out.
Rule 85(1)(f) requires a record of appeal to contain the affidavits read at the hearing. The court held that an annexure is an integral part of an affidavit, so an affidavit filed without its annexure is incomplete. The omission was not excused by Rule 85(3) nor capable of rectification by leave under Rule 85(2A). The breach being of a mandatory provision, the court had no alternative but to strike out the appeal.
Legal principles established
#- A record of appeal must contain a complete affidavit including its annexures; omission of an annexure breaches the mandatory provisions of Rule 85(1)(f) and renders the appeal incompetent, and the defect is neither sanctified under Rule 85(3) nor curable by leave under Rule 85(2A).
Court orders
#- 1.The appeal is struck out as incompetent for breach of Rule 85(1)(f) of the Court of Appeal Rules
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 1388 of 1992
- Jurisdiction invoked
- Court of Appeal Rules (Rule 85(1)(f)) - competence of an appeal filed in the Court of Appeal
Relief refused
#Consideration of the grounds contained in the Applicant's notice of motion filed on 1st October 1999
Having struck out the appeal for breach of Rule 85(1)(f), the court found it unnecessary to consider the motion's grounds
Costs
There will therefore be no order as to costs.
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.
The annexture as we have already observed, is an integral part of this affidavit and without it, the affidavit is incomplete.
This omission being neither one that has been sanctified under Rule 85 sub-rule (3), nor one which may be rectified with the leave of this Court under Rule 85(2A), makes the appeal incompetent and we have no alternative but to strike it out.
In the circumstances, we do not feel called upon to consider the grounds contained in the Applicant's notice of motion filed on 1st October, 1999. There will therefore be no order as to costs.
Issues in the judgment
#The coram lists the judge as 'OWUOR, JJ.A.' and the signature block reads 'E. OWUOR', but the judgment text refers to 'Ole Keiwua, J.' as the High Court judge while the cover page says 'Justice Keiwua' - a minor internal inconsistency in the lower court judge's name rendering.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "CALTEX OIL (KENYA) LIMITED v RONO LIMITED [2000] KECA 370 (KLR)", Case Analysis (2000). Civil Appeal No. 192 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/370/eng@2000-03-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.