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Court of AppealStruck OutCivil Appeal No. 33 of 1999

Crescent Construction Co. Ltd v Delphis Bank Limited [2001] KECA 256 (KLR)

Court of Appeal
19 February 2001
271 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~1 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal struck out an appeal over one missing page — a gap that couldn't be fixed, even with the other side's consent.

What this practically means

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Executive summary

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This short ruling of the Court of Appeal at Nairobi (Gicheru, Akiwumi and Tunoi, JJ.A.) determined a procedural question concerning the contents of a record of appeal. The Respondent had filed a Chamber Summons in the High Court to strike out the Appellant's suit in H.C.C.C. No. 4082 of 1994, and the second page of that Chamber Summons had been omitted from the record of appeal in the present appeal. The Appellant sought to cure the omission by a supplementary record of appeal under Rule 85(2A) of the Court of Appeal Rules. The Court held that the second page of the Chamber Summons is part of the pleadings in the superior court suit, and that Rule 85(2A) permits only documents falling under paragraphs (a), (b), (e), (i) or (k) of Rule 85(1) - not pleadings, which fall under paragraph (c) - to be included in a supplementary record. The omission of a pleading therefore could not be cured in that manner. The Court further held that the appeal was incompetent regardless of the Respondent's non-objection to the filing of the supplementary record. The appeal was struck out, with no costs awarded to the Respondent. The ruling binds lower courts and litigants on the strict categorisation of documents under Rule 85(1) and the consequences of omitting pleadings from the record of appeal.

Questions the Court framed

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

  1. 1.Whether the second page of a Chamber Summons filed by the Respondent to strike out the Appellant's suit is a pleading that forms part of the record of appeal, or a document that may be included in a supplementary record of appeal under Rule 85(2A) of the Court of Appeal Rules

Key legal issues

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01

Whether a page of a Chamber Summons is a pleading that must be included in the primary record of appeal and cannot be added by supplementary record under Rule 85(2A)

Holding

The Court held that the second page of the Chamber Summons is part of the pleadings in the superior court and therefore falls under paragraph (c) of Rule 85(1), not within the categories of documents that may be added by supplementary record under Rule 85(2A). Because the pleading was omitted from the record, the appeal was incompetent and was struck out, notwithstanding the Respondent's lack of objection.

Reasoning

The Court construed Rule 85(1) and Rule 85(2A) of the Court of Appeal Rules. Rule 85(2A) permits inclusion, by supplementary record with leave, only of documents falling under paragraphs (a), (b), (e), (i) or (k) of Rule 85(1). Pleadings are listed separately under paragraph (c) and are not among the documents eligible for a supplementary record. Since the Chamber Summons page was part of the pleadings and was omitted, the record was incomplete and the appeal incompetent, with no discretion to cure the defect even absent objection.

p. 2

Legal principles established

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  • Pleadings, including pages of a Chamber Summons which are part of the pleadings, cannot be included in a supplementary record of appeal under Rule 85(2A); only documents falling under paragraphs (a), (b), (e), (i) or (k) of Rule 85(1) may be so included
  • An appeal whose record omits a pleading is incompetent even where the Respondent does not object to the filing of a supplementary record to incorporate the missing page

Court orders

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  1. 1.The appeal is struck out
  2. 2.No costs awarded to the Respondent

The bench

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

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi, Milimani Commercial Court
H.C.C.C. No. 4082 of 1994
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal under the Court of Appeal Rules (Rule 85(1) and Rule 85(2A))

Relief refused

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The Appellant's attempt to include the missing page of the Chamber Summons in a supplementary record of appeal under Rule 85(2A)

The document is a pleading within paragraph (c) of Rule 85(1), not one of the documents covered by Rule 85(2A), rendering the appeal incompetent

p. 2

Costs

The appeal is struck out with no costs for the Respondent - each party effectively bearing its own costs

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.

The second page of the Chamber Summons filed by the Respondent to strike out the Appellant's suit in the superior court, is part of the pleadings in the suit in that court and as such, it is not one of those documents which, when omitted from the record of appeal as in this case, may under Rule 85(2A), with leave of this court, be included in a supplementary record of appeal.
p. 2Scope of Rule 85(2A) supplementary records - pleadings excluded
In the result, the present appeal is incompetent no matter whether the Respondent does not object just to the filling of a supplementary record of appeal to incorporate the missing page of the Chamber Summons.
p. 2Incompetence of appeal where pleading omitted from record
The appeal is hereby struck out, but obviously with no costs for the Respondent.
p. 2Final orders - striking out and costs

Issues in the judgment

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minor

The costs order is expressed ambiguously: the appeal is struck out 'with no costs for the Respondent', which does not state whether the Appellant bears the Respondent's costs or each party bears its own; the brief records it verbatim as given

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, "Crescent Construction Co. Ltd v Delphis Bank Limited [2001] KECA 256 (KLR)", Case Analysis (2001). Civil Appeal No. 33 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/256/eng@2001-02-19

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