Godffrey Ngumo Nyaga & another v Kenya Commercial Bank Ltd [2001] KECA 304 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal because the record omitted a certified copy of the order being appealed, and the gap could not be fixed later.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an appeal whose record omits a certified copy of the order appealed from is competent
- 2.Whether the omitted document can be brought on record by way of a supplementary record of appeal under rule 85(2A) of the Court of Appeal Rules
Key legal issues
#Competency of an appeal where the record omits a certified copy of the order appealed from
The appeal is incurably incompetent and must be struck out; the omission cannot be remedied by a supplementary record of appeal
The respondent applied to strike out the appeal because the record omitted a primary document, namely a certified copy of the order appealed from. The first appellant conceded the omission. Under rule 85(2A) of the Court of Appeal Rules, such an omitted document cannot be introduced by way of a supplementary record of appeal, leaving the defect incurable and the appeal incompetent.
Legal principles established
#- An appeal whose record omits a certified copy of the order appealed from is incurably incompetent and cannot be cured by a supplementary record of appeal under rule 85(2A) of the Court of Appeal Rules; such an appeal must be struck out
Court orders
#- 1.The appeal is struck out
- 2.Costs of the appeal and of the application awarded to the respondent (Kenya Commercial Bank Ltd)
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- H.C.C.C. No.4539 of 1992
- Jurisdiction invoked
- Appeal to the Court of Appeal under the Court of Appeal Rules (rule 85(2A) invoked on the competency of the appeal); no constitutional provision cited
Relief refused
#Continuation of the appeal
The record of appeal omitted a certified copy of the order appealed from, and rule 85(2A) barred curing the omission by a supplementary record, rendering the appeal incurably incompetent
Costs
Appeal struck out with costs including the costs of the application to the respondent (Kenya Commercial Bank Ltd)
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.
In view of the fact that under rule 85(2A) of the Court of Appeal Rules, the omitted document cannot be brought on record by way of a supplementary record of appeal, it follows that this appeal is incurably incompetent.
In the result it must be and is hereby struck out with costs including the costs of the application to the respondent(Kenya Commercial Bank Ltd).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Godffrey Ngumo Nyaga & another v Kenya Commercial Bank Ltd [2001] KECA 304 (KLR)", Case Analysis (2001). Civil Appeal No. 191 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/304/eng@2001-03-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.