Daniel Kipkemboi Bett & 7 others v Margaret Wanjiku Chege [2010] KECA 63 (KLR)
The bottom line
#Kenya's Court of Appeal refused to kill an appeal over paperwork mistakes, confirming courts must weigh fairness before striking out filings on technicalities.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Record of Appeal should be struck out for failure to comply with Rule 85(1) on certification of the order appealed from
- 2.Whether the certificate under Rule 85(5) read with Rule 22 was defective because the advocate did not state he was signing on behalf of his firm
Key legal issues
#Whether the failure of the advocate to state that he was signing the Rule 85(5) certificate on behalf of his law firm rendered the Record of Appeal fatally defective
No; the applicants knew the appeal was lodged by Margaret Wanjiku Chege through the firm of Kiarie & Company Advocates, and no harm or prejudice was occasioned, so the ground was rejected.
The court held that the firm name is merely a name under which the advocate practises. The applicants did not dispute that the signature was Mr. Kiarie's or that they knew who lodged the appeal. Striking out on that basis would violate the letter and spirit of sections 3A and 3B of the Appellate Jurisdiction Act, which were introduced to prevent claims being defeated on procedural technicalities irrespective of their merits.
Whether inclusion of a certified photocopy of the order, rather than a certified copy, rendered the Record of Appeal fatally defective under Rule 85(1)(h)
No; there was a certified order correctly reflecting the decision below, and the applicants could file a certified copy through a supplementary record under rule 89(3) if they felt it necessary.
Distinguishing Murai v Wainaina (No. 2), where there was no decree at all, the court noted that here there was an order, certified by the Deputy Registrar, and the applicants agreed it correctly reflected the decision of the superior court. Following Kamani, after sections 3A and 3B and Article 159(2)(d), the overriding objective requires courts to prefer alternatives to striking out. A purely formal complaint about photocopy versus certified copy is a technicality that does not go to the merits.
Legal principles established
#- After the enactment of sections 3A and 3B of the Appellate Jurisdiction Act and Article 159(2)(d) of the Constitution, courts must not automatically strike out filings for procedural defects but must first consider whether alternatives consonant with the overriding objective exist.
- Precedents on striking out for procedural non-compliance decided before the enactment of sections 3A and 3B must be considered in light of those amendments.
- An unsigned or unattributed advocate's signature on a certification is not fatal where the opponent knows who lodged the appeal and no prejudice is shown.
Court orders
#- 1.The notice of motion dated and lodged in the Court on 20th April, 2010 is dismissed
- 2.Costs of the motion to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kitale
- H.C.C.C. No. 55 of 2009
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act; inherent appellate jurisdiction over own procedure
Relief refused
#Striking out of the Record of Appeal on grounds of defective certification under Rule 85(1) and Rule 85(5)
The objections were merely technical and striking out would violate the overriding objective in sections 3A and 3B of the Appellate Jurisdiction Act and Article 159(2)(d) of the Constitution; the applicants suffered no prejudice and could file a supplementary record
Costs
The notice of motion was dismissed with the costs thereof to the respondent (Margaret Wanjiku Chege).
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
For the reasons stated herein, the notice of motion by the applicants dated and lodged in this Court on 20 th April, 2010 fails and we order that it be and is hereby dismissed with the costs thereof to the respondent.
the initial approach of the courts now must not be to automatically strike out a pleading but to first examine whether the striking out will be in conformity with the overriding objectives set out in the legislation
In dealing with decisions of the court made before the amendments, litigants and the practicing bar must now bear in mind the existence of the amendments and that the court will consider previous decisions bearing in mind the existence of the amendments.
the grounds upon which the applicants were asking us to strike out the appeal can properly be described as technical because they do not challenge any inherent merits in the appeal itself; they only challenge the manner in which the appeal has been lodged.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daniel Kipkemboi Bett & 7 others v Margaret Wanjiku Chege [2010] KECA 63 (KLR)", Case Analysis (2010). Civil Appeal (Application) 81 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/63/eng@2010-11-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.