Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealStruck OutCivil Appeal 163 of 2000· [2005] KECA 220 (KLR)

Wandiri Karimi & another v Ghalib Khan & another [2005] KECA 220 (KLR)

Court of Appeal of Kenya
13 May 2005
Philip Kiptoo TunoiP.K. TunoiEOE.O. O'KubasuEGE.M. Githinji
579 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal struck out the appeal over a missing signed defence page, even though the strike-out request itself was years late.

What this practically means

#

Executive summary

#
This is a ruling of the Court of Appeal at Nyeri (Tunoi, O'Kubasu and Githinji, JJ.A.) on the respondents' application under rule 80 of the Court of Appeal Rules to strike 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 court first held that the application was incompetent: the proviso to rule 80 requires such an application to be brought within thirty days of service of the record of appeal, and service had been effected on the respondents' then advocates on record, M/s Mbae Mwarania & Co. Advocates, on 13/6/2000, so the application should have been filed by about 13/7/2000. Filed 4½ years later, it was grossly out of time. Nevertheless, the court found the appeal itself fatally defective: the respondents' counsel conceded that page 2 of the two-page Amended Defence, which bears the signature required for a pleading, was missing from the record. Without that page the first page could not be treated as a pleading, so an essential primary document was omitted in breach of rule 85(1)(c), and rule 85(2A) does not allow a supplementary record to cure such an omission. The entire appeal was therefore incompetent. The court struck out both the incompetent appeal and, in effect, declined relief on the application, ordering that both be struck out with no orders as to costs. The decision binds lower courts on the mandatory thirty-day rule 80 window and on the competence consequences of omitting a signed pleading from the record.

Key legal issues

#
01

Limitation period for an application to strike out an appeal under rule 80

Holding

The thirty-day window runs from service of the record of appeal on the respondent's advocates then on record; the application filed 4½ years later was incompetent.

Reasoning

The record of appeal was served on the applicant's then advocates on record, M/s Mbae Mwarania & Co. Advocates, on 13/6/2000. Under Order 111 rule 6 of the Civil Procedure Rules those advocates remained on record until a change was filed on 20/10/2004, so service on them counted. Time therefore expired on or about 13/7/2000; the late application could not be entertained.

p. 2
02

Effect of omitting a respondent's pleading from the record of appeal

Holding

The omission of the signed second page of the Amended Defence meant a primary document was missing in breach of rule 85(1)(c), rendering the entire appeal incompetent.

Reasoning

A pleading must be signed by the party or their advocates to be a pleading; without the second page the first page could not stand as a pleading. The Amended Defence was thus a primary document omitted from the record, and rule 85(2A) does not permit curing the omission by a supplementary record. An appeal lacking an essential pleading is incompetent and must be struck out.

p. 2

Legal principles established

#
  • An application to strike out an appeal under rule 80 must be brought within thirty days of service of the record of appeal, failing which it is incompetent.
  • Omission of a primary document such as a pleading from the record of appeal in breach of rule 85(1)(c) renders the entire appeal incompetent, and rule 85(2A) does not permit a supplementary record to cure the omission.
  • A court may strike out an incompetent appeal of its own motion notwithstanding that the application seeking striking out is itself incompetent.

Court orders

#
  1. 1.The application to strike out is dismissed as incompetent (having been filed grossly out of time)
  2. 2.The appeal is struck out
  3. 3.No orders as to costs - each party bears own costs

Authorities

#

Legislation

  • Court of Appeal RulesRule 80 and proviso
  • 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
Appellate jurisdiction under the Court of Appeal Rules (interlocutory application under rule 80 of the Court of Appeal Rules)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Wandiri Karimi & another v Ghalib Khan & another [2005] KECA 220 (KLR)", Case Analysis (2005). Civil Appeal 163 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/220/eng@2005-05-13

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