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Court of AppealAllowedCivil Appeal (Appli) No. 256 of 2007· [2008] KECA 51 (KLR)

Lawrence Gitonga& 2 others v Kinoro Tea Factory Limited & & another [2008] KECA 51 (KLR)

Court of Appeal
28 November 2008
SBS.E.O. BosireEOE.O. O'KubasuJOJ.W. Onyango Otieno
1,014 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an entire appeal because key documents were missing from the appeal record without a judge's permission to leave them out.

What this practically means

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Executive summary

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This was an application by notice of motion under Rules 80, 81 and 85 of the Court of Appeal Rules by Lawrence Gitonga, James Mutiria and Sylvia Njue Mutiria seeking to strike out the notice of appeal and record of appeal filed by Kinoro Tea Factory Limited on 3rd December 2007, arising from a ruling of Ang'awa, J in H.C.C.C No. 1153 of 2002 delivered on 2nd November 2005. The applicants contended that primary documents had been excluded from the record without an order for such exclusion, that other documents necessary for the determination of the appeal were omitted, that the order extending time to appeal was not included, and that essential steps had not been taken within prescribed time. Counsel for the appellant, Mr. Wamiti, ultimately conceded that the record of appeal was defective. The court, per a unanimous bench of Bosire, O'Kubasu and Onyango Otieno, JJA, applied rule 85(1), which enumerates primary and secondary documents for inclusion in a record of appeal, and rule 85(3), which vests the power to direct exclusion of documents in a judge or registrar of the superior court. Following its earlier decision in Commercial Bank of Africa Ltd v Ndirangu, the court held that the omission of any primary document, absent an exclusion direction, renders an appeal incurably defective and incompetent. The application was allowed and the notice and record of appeal were struck out with costs to the applicants. This rule now binds subordinate courts and tribunals when assessing the competence of records of appeal.

Key legal issues

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Whether a record of appeal omitting primary documents is competent

Holding

The record of appeal was struck out because primary documents had been excluded without an order under rule 85(3), and counsel for the appellant conceded the record was defective.

Reasoning

Rule 85(1) enumerates the documents to be included in a record of a first appeal, in two categories: primary and secondary. Only a judge or registrar of the superior court may direct exclusion under rule 85(3). Since primary documents were omitted without such direction, the appeal was incurably defective. The court applied its own earlier decision in Commercial Bank of Africa Ltd v Ndirangu and noted the appellant's concession that the record was defective.

p. 3

Legal principles established

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  • The omission of any primary document from a record of appeal, unless specifically excluded by a judge's direction under rule 85(3), renders the appeal incurably defective and incompetent; a party has no discretion to exclude documents from the record.

Court orders

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  1. 1.The notice of appeal and the record of appeal filed in court on 3rd December, 2007 be and are hereby struck out
  2. 2.Costs of the application to the applicants

Authorities

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Legislation

  • Court of Appeal RulesRule 85(1)
  • Court of Appeal RulesRule 85(2)
  • Court of Appeal RulesRule 85(3)
  • Court of Appeal RulesRule 78
  • Court of Appeal RulesRules 80, 81 and 85

Cases cited (1)

  • Commercial Bank of Africa Ltd v Ndirangu
    [2000] 1 E.A. 29
On appeal from
High Court of Kenya at Nairobi
H.C.C.C No. 1153 of 2002
Jurisdiction invoked
Rules 80, 81 and 85 of the Court of Appeal Rules (application to strike out notice and record of appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Lawrence Gitonga& 2 others v Kinoro Tea Factory Limited & & another [2008] KECA 51 (KLR)", Case Analysis (2008). Civil Appeal (Appli) No. 256 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/51/eng@2008-11-28

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