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Court of AppealStruck OutCivil Appeal No. 169 of 2000

Chemigas Limited v BOC Kenya Limited [2001] KECA 313 (KLR)

Court of Appeal
31 July 2001
1,317 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out Chemigas's appeal because a key document carried the wrong case number — a fatal, unfixable mistake.

What this practically means

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Executive summary

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This ruling of the Court of Appeal at Nairobi (Kwach, Tunoi and Bosire JJ.A) disposed of two applications argued together: the respondent's application to strike out the appeal as incompetent because the formal order in the record of appeal bore the wrong case number (965 instead of 935), and the appellant's application for leave to amend that formal order to correct the number. The Court held that a formal decree or order is a primary document under rule 85(1) of the Court of Appeal Rules, and that unless a record of appeal includes a valid copy of it the appeal is liable to be struck out as incompetent. Following its earlier decisions in Parsi Anjumani v Mushin Abdul Karimi Ali, cited with approval in Republic v The Managing Director Kenya Posts & Telecommunications Corporation, the Court held that rule 44's power to amend 'any document' must be construed in light of rule 85(2A), and that a primary document cannot lend itself to amendment. The case number on a decree or order is its identifying mark; its omission or incorrectness is a fundamental defect, not a minor irregularity, and certification of the order is a judicial, not ministerial, act. The Court declined leave to amend; since counsel for the appellant conceded the appeal would be incompetent without the amendment, the appeal was struck out with costs, and the costs of both applications were awarded to the respondent. The decision binds lower courts and litigants on the competence of appeals founded on defective primary documents.

Questions the Court framed

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

  1. 1.Whether a formal order (a primary document) with an incorrect case number in the record of appeal can be amended by the Court of Appeal under rule 44 or rule 1(3) of the Court of Appeal Rules
  2. 2.Whether the appeal, containing a defective formal order, is competent

Key legal issues

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01

Whether a primary document (formal order/decree) may be amended on appeal

Holding

It may not; rule 44 must be construed in light of rule 85(2A), and a primary document cannot lend itself to amendment

Reasoning

The Court reaffirmed its prior decisions that rule 44's reference to 'any document' must be read restrictively so as not to defeat rule 85(2A). Certification of a formal order is a judicial act confirming correctness of the case number, parties and decision appealed from. The correctness of a decree or order in substance and form is a matter for the court that issued it, not the appellate court.

p. 2
02

Whether the incorrect case number on the formal order was a minor defect curable by amendment

Holding

No; the case number is the identifying mark of a case and its incorrectness is a fundamental defect going to the competence of the appeal

Reasoning

The Court held that the number of the case inserted on the title of the order under Order XX rules 6 and 7 of the Civil Procedure Rules is not otiose. Since parties may be involved in more than one case, the correct number is a matter for the court from which the order emanated. The appellant conceded the appeal would be incompetent without the amendment.

p. 2

Legal principles established

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  • A formal decree or order is a primary document which cannot be amended by the Court of Appeal; a record of appeal without a valid certified copy of it renders the appeal incompetent
  • An incorrect or omitted case number on a decree or order is a fundamental defect, not a minor irregularity
  • The power to amend under rule 44 must be read in light of rule 85(2A) and cannot be used to validate an otherwise incompetent appeal

Court orders

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  1. 1.The appeal is struck out as incompetent
  2. 2.Costs of the appeal and of both applications 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 Civil Case No. 935 of 1999
Jurisdiction invoked
Appeal under the Court of Appeal Rules from a ruling and order of the High Court of Kenya at Nairobi

Relief refused

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Leave to amend the formal order by deleting case number 965 and substituting 935

A primary document cannot be amended; the power to amend under rule 44 is to be exercised sparingly and cannot validate an incompetent appeal

p. 3

Costs

Costs of the appeal and of both applications awarded to the respondent, BOC Kenya Limited

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.

A formal decree or order is a primary document by dint of the provisions of rule 85(1) of the Court of Appeal Rules (the Rules). So unless a record of appeal includes a valid copy of it, the appeal is liable to be struck out as incompetent.
p. 1competence of appeals - primary documents
The requirement that the case number be included in the title is not otiose. The number is the identifying mark of every case and its omission or incorrectness is a fundamental defect.
p. 2fundamental vs minor defects
The power to amend is a power which in our view, should be exercised quite sparingly and in matters where minor amendments are involved.
p. 3discretion to amend
In the result we are disinclined to grant leave to amend the formal order. As Mr. Regeru conceded that the appellant's appeal would be incompetent unless the amendment it sought was granted, the order that then commends itself to us is that the appeal be and is hereby struck out, with costs.
p. 3final orders - striking out the appeal

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, "Chemigas Limited v BOC Kenya Limited [2001] KECA 313 (KLR)", Case Analysis (2001). Civil Appeal No. 169 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/313/eng@2001-07-31

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