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Court of AppealStruck OutCivil Appeal 163 of 2000· [2005] KECA 19 (KLR)

WANDIRI KARIMI & LYDIA KARIMI v GHALIB KHAN & NEER CONSTRUCTION (Civil Appeal 163 of 2000) [2005] KECA 19 (KLR)

Court of Appeal of Kenya
13 May 2005
Philip Kiptoo TunoiP.K. TunoiEOE.O. O'KubasuEGE.M. Githinji
571 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an appeal because a key document was missing from the record, and no late application could save it.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nyeri (Tunoi, O'Kubasu and Githinji, JJA) on a notice of motion by the respondents in the appeal, who sought an order under rule 80 of the Court of Appeal Rules striking out the appeal on the ground that the record of appeal omitted the written statement of defence and parts of the amended defence, contrary to rule 85(1)(c). The appellant opposed the application principally on the ground that it was filed some four and a half years after service of the record of appeal. The court held that under the proviso to rule 80 such an application must be brought within thirty days of service of the record; service on the applicant's advocates on record on 13/6/2000 started time running, so the application, filed on or about 2004, was grossly out of time and incompetent. However, the court went on to consider the record itself. Respondents' counsel conceded that page 2 of the two-page Amended Defence was missing; without that signed page the first page could not stand as a pleading. The omission of a primary document breached rule 85(1)(c), and rule 85(2A) does not permit a supplementary record to cure such an omission. The court therefore struck out the appeal as incompetent, and also struck out the incompetent application, with no orders as to costs. No authorities were cited in the ruling.

Key legal issues

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01

Timeliness of a rule 80 striking-out application

Holding

Time for filing an application to strike out ran from service of the record of appeal on the applicant's advocates on record; the application filed 4½ years later was grossly out of time and incompetent.

Reasoning

The record of appeal was served on the applicant's then advocates, M/s Mbae Mwarania & Co. Advocates, on 13/6/2000. Under order 111 rule 6 of the Civil Procedure Rules that firm remained the advocates on record until a change was filed on 20/10/2004, so service on it was valid service. The thirty-day window under the proviso to rule 80 expired around 13/7/2000, making the application incompetent.

p. 2
02

Effect of omitting an essential pleading from the record of appeal

Holding

Omission of page 2 of the Amended Defence, which was required to be signed, meant the appellant failed to include the respondents' primary pleading in breach of rule 85(1)(c), rendering the entire appeal incompetent.

Reasoning

An unsigned first page cannot stand as a pleading without the signed second page. The Amended Defence was a primary document which rule 85(1)(c) required to be included in the record, and rule 85(2A) barred curing the omission by a supplementary record. An essential pleading necessary for the proper determination of the appeal was thus missing, making the appeal incompetent notwithstanding the incompetence of the striking-out application.

p. 2
03

Power to strike out an incompetent appeal notwithstanding an incompetent application

Holding

Even though the rule 80 application was itself incompetent for lateness, the court would nevertheless strike out the incompetent appeal in the circumstances of the case.

Reasoning

The court separated the competence of the application from the competence of the appeal. Although the respondents could not rely on their out-of-time application, the appeal's own non-compliance with rule 85(1)(c) made it incompetent, and the court invoked its inherent capacity to strike out an incompetent appeal rather than allow a defective appeal to proceed simply because the striking-out application failed.

p. 2

Legal principles established

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  • An application to strike out an appeal under rule 80 must be brought within thirty days of service of the record of appeal; an application filed beyond that period is incompetent and cannot be entertained.
  • Rule 85(2A) does not permit the filing of a supplementary record to include an omitted primary document; an appeal whose record omits an essential pleading is incompetent and may be struck out even though the striking-out application itself is incompetent.

Court orders

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  1. 1.The application to strike out the appeal is struck out as incompetent for being filed out of time
  2. 2.The appeal is struck out
  3. 3.No orders as to costs

Authorities

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Legislation

  • Court of Appeal RulesRule 80
  • Court of Appeal RulesRule 85(1)(c)
  • Court of Appeal RulesRule 85(2A)
  • Civil Procedure RulesOrder 111 rule 6
On appeal from
High Court of Kenya at Meru
H.C.C.C. No. 475 of 1993
Jurisdiction invoked
Court of Appeal Rules, rule 80 and rule 85

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, "WANDIRI KARIMI & LYDIA KARIMI v GHALIB KHAN & NEER CONSTRUCTION (Civil Appeal 163 of 2000) [2005] KECA 19 (KLR)", Case Analysis (2005). Civil Appeal 163 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/19/eng@2005-05-13

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