KENYA COMMERCIAL FINANCE COMPANY LIMITED V RICHARD AKWESERA ONDITI (Civil Appeal (Application) 329 of 2009) [2010] KECA 134 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that defective appeal records no longer get automatically struck out; courts must first consider fixes like supplementary records.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an appeal should be automatically struck out for a defective certified copy of the decree and omission of primary documents from the record of appeal
- 2.What role the overriding objective under Sections 3A and 3B of the Appellate Jurisdiction Act plays in striking-out applications
- 3.Whether omissions from a record of appeal can be cured by filing a supplementary record of appeal
Key legal issues
#Effect of Sections 3A and 3B of the Appellate Jurisdiction Act on striking-out applications
Defects in a record of appeal no longer lead to automatic striking out; the court must consider alternatives that enable just, expeditious and proportionate resolution.
Before the enactment of Sections 3A and 3B, such submissions would have been unanswerable. The introduction of the overriding objective means the court now has wider powers and will not automatically strike out proceedings, instead examining available alternatives before resorting to the draconian step of striking out, as illustrated in City Chemist and Kamani.
Whether omissions from a record of appeal can be cured by a supplementary record
Omissions, including an incomplete certified decree and missing exhibits, may be cured by filing supplementary records of appeal rather than striking out the appeal.
The Court followed Kamani, where the omission of judges' notes as primary documents did not warrant striking out; instead the party was ordered to file a supplementary record under Rule 89(3). Here, both the decree and the missing exhibits could be brought in by supplementary records filed within twenty-one days.
Legal principles established
#- Since the enactment of the overriding objective in Sections 3A and 3B of the Appellate Jurisdiction Act, there is no automatic striking out of an appeal; the court must consider available alternatives first.
- The overriding objective does not license non-compliance with settled procedures; the Court retains an unqualified discretion to strike out but will look for alternatives before doing so.
- In applying the overriding objective, each case must be assessed on its own peculiar facts and circumstances.
Court orders
#- 1.Notice of motion seeking to strike out the appeal disallowed and dismissed
- 2.Appellant to file within twenty-one days a supplementary record of appeal containing an amended certified copy of the decree including the portion of the judgment dismissing his plaint with costs
- 3.Respondent granted leave under Rule 89(1) to file within twenty-one days a supplementary record of appeal containing the missing documents
- 4.Upon filing of the two supplementary records, each side to serve the other within seven days
- 5.Costs of the motion to be in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kakamega
- H.C.C.C. No. 65 of 1993
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal under the Appellate Jurisdiction Act, including Sections 3A and 3B (overriding objective), and the Court of Appeal Rules (Rule 89)
Relief refused
#Striking out of Civil Appeal No. 329 of 2009
The overriding objective requires the court to consider alternatives before striking out; striking out would cause further delay and costs
Costs
The costs of the motion shall be in the appeal
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.
Since the enactment of the said provisions, which brought in the principle or concept of overriding objective in litigation, there can be no automatic striking out of an appeal or a notice of appeal unless there is no alternative to that course.
The Court still retains an unqualified discretion to strike out a record of appeal or a notice of appeal; the only difference now is that the Court has wider powers and will not automatically strike out proceedings. The Court, before striking out, will look at available alternatives.
in applying the principle or concept of overriding objective, each case must be viewed on its own peculiar facts and circumstances and it would be a grave mistake for anyone to fail to comply with well settled procedures and when asked why, to simply wave before the Court the provisions of Sections 3A and 3B of the Appellate Jurisdiction Act.
Accordingly, we disallow the notice of motion seeking to strike out the appeal and dismiss it.
Issues in the judgment
#The judgment refers to the respondent as 'Kenya Commercial Finance Corporation' in one passage while the title names it 'Kenya Commercial Finance Company Limited'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "KENYA COMMERCIAL FINANCE COMPANY LIMITED V RICHARD AKWESERA ONDITI (Civil Appeal (Application) 329 of 2009) [2010] KECA 134 (KLR)", Case Analysis (2010). Civil Appeal (Application) 329 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/134/eng@2010-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.