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Court of AppealStruck OutCivil Appeal No. 46 of 1999

Dorcas Wangari Macharia v Terry Wacheke Muigai & Agnes Wambui Muigai

Court of Appeal
29 September 2000
923 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 entire appeal because the notice of appeal cited a ruling date that never existed — and such notices cannot be corrected.

What this practically means

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Executive summary

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The first respondent moved the Court of Appeal under rules 80 and 42 of the Court of Appeal Rules to strike out Civil Appeal No. 46 of 1999, an appeal from a ruling of the High Court (Shaikh Amin J) dated 24th October 1995 in Succession Cause No. 590 of 1985. The application complained that the appellant failed to include the answer to the petition and certain exhibits in the record of appeal, that exhibits at specified pages were illegible contrary to rule 13(2), and that submissions were underlined. The Court held these complaints insufficient: the missing answer appeared in all copies of the record except counsel's service copy; illegible exhibits could be cured by a supplementary record under rule 89; and underlining alone could not justify striking out. However, the Court raised, of its own motion, a fatal competency issue: the notice of appeal, which gives the Court jurisdiction, referred to a ruling delivered on 25th October 1999 - a ruling that does not exist - while the record showed a ruling of 24th October 1995 and the judge's notes indicated 26th October 1995. Holding that a notice of appeal is a primary document that cannot be amended, and that the three dates could not be reconciled, the Court struck out the appeal itself. Because the striking out flowed from a point raised by the Court rather than the respondent, it made no order as to costs. The judgment binds lower courts on the non-amendability of a defective notice of appeal and on curable record defects.

Questions the Court framed

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

  1. 1.Whether the appeal should be struck out for failure to include the answer to the petition and exhibits in the record of appeal
  2. 2.Whether illegible exhibits and underlined submissions in the record offend rule 13 of the Court of Appeal Rules and warrant striking out
  3. 3.Whether the appeal is competent given that the notice of appeal refers to a ruling delivered on 25th October 1999, a non-existent ruling

Key legal issues

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01

Effect of omissions from the record of appeal

Holding

Omission of a pleading from the service copy, and inclusion of illegible exhibits, do not justify striking out the appeal; a supplementary record under rule 89 is the remedy.

Reasoning

The answer to the petition was in all copies of the record except counsel's service copy, which could be obtained from the appellant. Illegible photographs and documents could be cured by filing legible copies with leave under rule 89. Underlining of submissions, though imprudent, is not a ground for striking out. These defects are curable and do not go to competency.

p. 2
02

Competency of the appeal given a defective notice of appeal

Holding

The notice of appeal referred to a ruling of 25th October 1999 which does not exist; as a primary document incapable of amendment, the defect is incurable and the appeal must be struck out.

Reasoning

The notice of appeal confers jurisdiction on the Court. It cited a ruling dated 25th October 1999, yet the record shows a ruling of 24th October 1995 and the judge's notes indicate 26th October 1995. Since a notice of appeal cannot be amended, the three dates cannot be reconciled, and the appeal itself, not merely the record, must be struck out.

p. 2

Legal principles established

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  • Non-inclusion of a pleading in the service copy of the record of appeal does not justify striking out an appeal where all other copies contain it.
  • Inclusion of illegible copies of exhibits does not warrant striking out a record of appeal; the remedy is a supplementary record under rule 89.
  • A notice of appeal is a primary document that cannot be amended; a notice referring to a non-existent ruling is defective and fatal to the appeal.

Court orders

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  1. 1.The appeal, Civil Appeal No. 46 of 1999, is struck out
  2. 2.No order as to costs

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
Succession Cause No. 590 of 1985
Jurisdiction invoked
Notice of appeal under the Court of Appeal Rules (rules 80 and 42 invoked for striking out); jurisdiction founded on the notice of appeal

Relief refused

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Adjournment sought by appellant's counsel to check the superior court record to confirm the exact date of the ruling

The three conflicting dates could not be reconciled to cure the defect in the notice of appeal; an adjournment would be futile

p. 2

Costs

No order as to costs - each party to bear their own costs, because the striking out resulted from a point raised by the Court itself and not by the first respondent

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.

Noninclusion of a pleading in the service copy of the record does not qualify for striking out of an appeal when all other copies of the record contain the same.
p. 1Omissions from service copy of record
A notice of appeal is a primary document. It cannot be amended.
p. 2Ir amendability of notice of appeal
In these circumstances we have no alternative but to strike out the appeal itself, and we so order.
p. 2Final orders - striking out the appeal
As the striking out of the appeal comes as a result of the point raised by this Court, and not by the first respondent, we make no order as to costs.
p. 2Final orders - costs

Issues in the judgment

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minor

Coram spells the first respondent's name 'Macharia' side caption 'Muigai' but the body uses 'Mungai'

minor

Typographical errors in the judgment, e.g. 'Nariobi Hospital' for Nairobi Hospital

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, "Dorcas Wangari Macharia v Terry Wacheke Muigai & Agnes Wambui Muigai", Case Analysis (2000). Civil Appeal No. 46 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/418/eng@2000-09-29

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