Pascale Mireille Baksh & another v Nishth Yogendra Patel [2009] KECA 19 (KLR)
The bottom line
#Kenya's Court of Appeal refused to strike out an appeal over missing documents, holding that curable omissions can be fixed with a supplementary record.
What this practically means
#Executive summary
#Key legal issues
#When does a request for particulars become a pleading for purposes of rule 85(1)(c) of the Court of Appeal Rules?
A request for particulars is not in itself a pleading; it only becomes part of the pleadings when the other party acts on it and files particulars together with the original notice. Where the request was not acted upon, its omission from the record of appeal does not render the record incompetent.
The court read rule 85(1)(c) of the Court of Appeal Rules alongside Order VI rule 8(6) of the Civil Procedure Rules, which provides that particulars delivered shall be filed with the original notice and shall form part of the pleadings. Since counsel for the appellant deponed that he never responded to the request and this was not disputed, the request alone did not constitute a pleading whose omission could invalidate the record.
Whether omission of procedural documents (Notice of Change of Advocates, Memorandum of Appearance, Notice of Address for Service) justifies striking out a record of appeal.
No. Such documents fall under rule 85(1)(b) and may be introduced by supplementary record under rules 85(2A) and 89(3); striking out is reserved for cases where vital documents cannot be introduced by supplementary record.
The court characterized striking out as a draconian act that no court should order on analytical arguments alone. Where a record can be salvaged through the supplementary-record provisions, the court has a duty not to strike it out. The notice of address for service, though filed late, could not be unilaterally excluded by a party; exclusion requires an order under rule 85(3). The memorandum of appearance complaint was not pursued.
Legal principles established
#- A request for particulars that was not acted upon is not a pleading for purposes of rule 85(1)(c), and its omission from the record of appeal does not render the record incompetent.
- Striking out a record of appeal is a draconian remedy; where omissions can be cured by a supplementary record under rules 85(2A) and 89, the court must not strike out the record.
- A party cannot unilaterally decide to exclude a document from the record of appeal on the ground that it was filed late; exclusion requires a court order under rule 85(3).
Court orders
#- 1.The Notice of Motion dated 28th September 2007 seeking to strike out the notice of appeal and record of appeal is dismissed
- 2.Costs of the application awarded to the appellant/respondent
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 617 of 1995
- Jurisdiction invoked
- Rule 80 of the Court of Appeal Rules (application to strike out a notice and record of appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pascale Mireille Baksh & another v Nishth Yogendra Patel [2009] KECA 19 (KLR)", Case Analysis (2009). Civil Appeal (Application) 189 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/19/eng@2009-01-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.