Berco Auto Spares Ltd v Hannah Wanjiru Wanganga [2001] KECA 30 (KLR)
The bottom line
#Kenya's Court of Appeal refused to strike out an appeal, holding that a service rubber-stamp proved delivery and only pleadings existing before the ruling need appear in the record.
What this practically means
#Executive summary
#Key legal issues
#Service of the notice of appeal under rule 76(1)
The ground of non-service failed; the court was not satisfied that service was not effected, and the suggestion that the service rubber-stamp was forged was not established.
The respondent's process server swore an affidavit that he served the notice of appeal on the applicant's advocates' office on 8th November 2000, and the exhibited copy bore a rubber-stamp evidencing service on that date. The applicant's objection rested on a minor typographical difference in the layout of the second page between two copies, explained as a copying artefact, and on counsel's statement from the bar that no clerk received the copy, which the court held was not enough to displace the documentary evidence of service.
Contents of the record of appeal under rule 85(1)(c)
The omission of the amended plaint did not render the record defective because the amended plaint was lodged after the ruling appealed against and was not before the superior court when the application for injunction was argued.
Rule 85(1)(c) requires pleadings to be included in the record of appeal, but the obligation extends only to pleadings that existed before the date of the decision appealed against. An amended plaint lodged on 29th November 2000, after the ruling of 26th October 2000, was not a primary document and its absence could not ground striking out the appeal.
Legal principles established
#- A notice of appeal must be served on the respondent within seven days of lodgement under rule 76(1) of the Court of Appeal Rules, but a bare assertion of non-service, unsupported by evidence, will not render an appeal incompetent where there is evidence, such as a service rubber-stamp, indicating service.
- Rule 85(1)(c) requires pleadings to be included in the record of appeal, but only pleadings in existence before the date of the ruling appealed against; pleadings lodged after the decision under appeal need not be included.
Court orders
#- 1.The applicant's application to strike out Civil Appeal No. 321 of 2000 is dismissed
- 2.Costs of the application awarded to the respondent
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 1676 of 2000
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal under the Constitution and the Court of Appeal Rules (rule 76(1) and rule 85(1)(c) invoked); the application was brought in the pending appeal, Civil Appeal No. 321 of 2000
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Berco Auto Spares Ltd v Hannah Wanjiru Wanganga [2001] KECA 30 (KLR)", Case Analysis (2001). Civil Appeal No. 321 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/30/eng@2001-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.