Crescent Construction Co. Ltd v Delphis Bank Limited [2001] KECA 256 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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
#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)
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.
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.
Legal principles established
#- 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
#- 1.The appeal is struck out
- 2.No costs awarded to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
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
#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
Costs
The appeal is struck out with no costs for the Respondent - each party effectively bearing its own 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 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.
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.
The appeal is hereby struck out, but obviously with no costs for the Respondent.
Issues in the judgment
#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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.