WESTMONT POWER (KENYA) LIMITED v BOSLEY FREDERICK & ANOTHER T/A CONTINENTAL TRADERS & MARKETING [2007] KECA 323 (KLR)
The bottom line
#Kenya's Court of Appeal refused to strike out Westmont Power's appeal, ruling that technical objections to records, signatures, and wording cannot defeat a genuinely filed appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether pages of the Record of Appeal that are incomplete or illegible justify striking out the appeal
No. The impugned pages were photocopied exactly as they appeared in Mohamed Ali's affidavit in the superior court, where they stood as exhibits; the applicants could not take advantage of their own mistakes and the ground had no merit.
The pages complained of had been annexed to an affidavit sworn by Mohamed Ali, one of the partners of the respondents' firm, in support of a notice of motion filed in the superior court on 27th March 2002, and were photocopied into the record as they appeared there. On its own consideration the Court found the so-called incomplete pages were actually exhibits produced in the superior court. It characterized the complaint as mischievous because the applicants sought to take advantage of their own mistakes, and found no merit in the ground.
Whether the Memorandum of Appeal is incompetent because it was signed by A.R. Kapila & Co. instead of Kapila Anjarwalla & Khanna, the advocates on record in the superior court
No. A party may instruct a different firm to act for it on appeal; preparation and signing of the Memorandum by the newly instructed firm was proper and in accordance with Rule 23(1) of the Court of Appeal Rules.
Sheetal Kapila deponed that A.R. Kapila & Company was instructed to act for the appellant in this appeal, as evidenced by the statement of address for service contained in the record, and that the Memorandum of Appeal was prepared and signed by an advocate of that firm. The Court held this was quite proper and in accordance with Rule 23(1), which requires a party who changes advocates to lodge notice of the change with the Registrar and serve a copy on the other party. No breach of any rule of the Court was demonstrated.
Whether a Notice of Appeal referring to a 'Ruling' is incompetent where the applicants contend the decision delivered was a 'Judgment'
No. What Kuloba J delivered was a ruling, so the Notice of Appeal correctly described the decision; nothing is wrong with the Notice and arguments to the contrary must be rejected.
What was before the superior court was an application for summary judgment under Order XXXV rule 1 of the Civil Procedure Rules, argued from 24th June 2002. The decision was entitled 'Ruling' and the learned Judge himself recorded that the ruling was read out and delivered in open court on 3rd April 2003. Since the decision actually delivered was a ruling, the Notice of Appeal identifying a ruling was proper; the submission that the notice could not be amended and the appeal was therefore incompetent was rejected.
Whether the omission of the Amended Chamber Summons of 21st December 2001, its supporting affidavit, the affidavit of service, the decree and the certificate of costs from the Record of Appeal warrants striking out
No. Those documents were not primary documents and had nothing to do with the appeal; the fourth ground was rejected without hesitation.
Mr Nowrojee explained that the Amended Chamber Summons dated 21st December 2001 related to garnishee proceedings and predated the decision appealed from by roughly two years, so it was not a pleading for the purposes of the appeal. The Court accepted that the documents were not primary documents within Rule 85(1) of the Court of Appeal Rules and were not necessary for the proper determination of the appeal. It found counsel's submission that they formed part of the pleadings not candid, and rejected the ground.
Legal principles established
#- A party cannot secure the striking out of an appeal by complaining of pages of the record that were photocopied as they appeared in that party's own affidavit and exhibits in the superior court; a litigant cannot take advantage of its own mistakes.
- Where a party engages a new firm of advocates for the appeal, the Memorandum of Appeal may properly be prepared and signed by that firm, subject to Rule 23(1) notice of change of advocate; the appeal is not incompetent merely because the signing firm was not on record in the superior court.
- A Notice of Appeal that describes the decision appealed from as a 'Ruling' is competent where the decision actually delivered was a ruling, notwithstanding a contrary assertion by the opposing party.
- Documents that are not primary documents and have nothing to do with the appeal need not be included in the Record of Appeal; their omission is not a ground for striking out.
Court orders
#- 1.The Notice of Motion dated 28th July 2005 filed by the applicants/respondents seeking to strike out the appeal is dismissed.
- 2.The applicants to pay the costs of the application; the application to strike out the appeal is dismissed with costs. It is so ordered.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 1700 of 2001
- Jurisdiction invoked
- Rules 42(1) and 80 of the Court of Appeal Rules, made under section 5 of the Appellate Jurisdiction Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "WESTMONT POWER (KENYA) LIMITED v BOSLEY FREDERICK & ANOTHER T/A CONTINENTAL TRADERS & MARKETING [2007] KECA 323 (KLR)", Case Analysis (2007). Civil Appeal 146 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/323/eng@2007-06-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.