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Court of AppealPartially AllowedCivil Appeal 100 of 2008· [2009] KECA 99 (KLR)

Grace Wahu Njoroge v John Patrick Machira T/A Machira & Co. Advocates

Court of Appeal of Kenya
16 October 2009
ROR. S. C. OmoloPhilip Kiptoo TunoiP. K. TunoiDAD. K. S. Aganyanya
1,601 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an appeal because the lawyer filed the record late and left key documents out of it.

What this practically means

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Executive summary

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The respondent, John Patrick Machira t/a Machira & Co. Advocates, moved the Court of Appeal under rules 42, 80, 81 and 85 of the Court of Appeal Rules to strike out the appellant Grace Wahu Njoroge's appeal from the ruling of Ojwang, J delivered on 12th May 2006 in H.C.C.C. No. 3383 of 1995. The applicant advanced five grounds: a defective notice of appeal, the appeal being filed out of time, an incorrectly drawn order, a misleading certificate of delay, and the omission of primary documents from the record of appeal. The Court found that although the notice of appeal was filed in time under rule 74(2), the record of appeal lodged on 3rd June 2008 was out of time because the appellant could not invoke the proviso to rule 81(1): her application for certified proceedings was not copied to the respondent's advocates as mandated by rule 81(2), a point her counsel did not dispute. The Court further held that the further amended reply to further amended defence and defence to counter-claim and the grounds of objection were part of the pleadings and mandatorily to be included under rule 85(1); their omission was fatal and could not be cured by a supplementary record, rule 85(2)(A) not allowing it. The Court allowed the motion and struck out the appeal with costs, awarding the costs of both the motion and the appeal to the applicant.

Key legal issues

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01

Entitlement to the proviso to rule 81(1) on computation of time for lodging a record of appeal

Holding

The appellant could not rely on the proviso because her letter applying for the proceedings was neither copied to nor sent to the respondent's advocates, as required by rule 81(2); counsel for the appellant did not dispute this

Reasoning

The proviso to rule 81(1) excludes from the sixty-day period the time certified by the Registrar as required for preparing proceedings. Rule 81(2) conditions reliance on the proviso on the application for the copy being in writing and copied to the respondent. The appellant's letter of 12th May 2006 was not copied to the respondent's advocates, so the full sixty days expired before the record was lodged on 3rd June 2008, rendering the appeal incompetent.

p. 3
02

Omission of pleadings from the record of appeal

Holding

The omission of the further amended reply to further amended defence and defence to counter-claim and the grounds of objection, being part of the pleadings, made the record of appeal incurably defective

Reasoning

Rule 85(1) prescribes the mandatory contents of a record of appeal, including the pleadings. The omitted documents were part of the pleadings in the superior court and ought to have been included. Rule 85(2)(A) does not permit the defect to be cured by filing a supplementary record of appeal, so the appellant's October 2009 application for leave could not salvage the record.

p. 3

Legal principles established

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  • An appellant may only rely on the proviso to rule 81(1) excluding the time taken to prepare proceedings if the application for the copy of proceedings was in writing and a copy of it was sent to the respondent
  • Pleadings in the superior court must be included in the record of appeal under rule 85(1), and their omission is fatal to the appeal and cannot be cured by a supplementary record of appeal

Court orders

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  1. 1.The notice of motion to strike out the appeal is allowed and the appeal is struck out
  2. 2.Costs of the motion and of the appeal are awarded to the applicant
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 3383 of 1995
Jurisdiction invoked
Appeal from the High Court under the Court of Appeal Rules; the application was expressed to be under rules 42, 80, 81 and 85 of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Grace Wahu Njoroge v John Patrick Machira T/A Machira & Co. Advocates", Case Analysis (2009). Civil Appeal 100 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/99/eng@2009-10-16

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