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Court of AppealDismissedCivil Appeal (Application) No. 83 of 2008

Housing Finance Company of Kenya v Rose Wangari Ndegwar [2011] KECA 344 (KLR)

Court of Appeal
4 March 2011
EOE.O. O'KubasuJOJ.W. Onyango OtienoJNJ.G. Nyamu
1,029 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to strike out an appeal over paperwork mistakes, holding minor procedural lapses must not defeat justice.

What this practically means

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Executive summary

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This was an application by Housing Finance Company of Kenya, under Rules 42(1) and 80 of the Court of Appeal Rules, to strike out an appeal filed by Rose Wangari Ndegwa against a ruling of Sergon, J. of the High Court at Mombasa dated 20 November 2007. The applicant raised multiple grounds: the appeal was allegedly filed out of time under Rule 81; the letter requesting typed proceedings was never served; the Notice of Appeal was not served on the 2nd, 3rd and 4th defendants within the prescribed period; the extracted order did not conform to the ruling and was invalidly extracted without compliance with Order XX Rule 7 of the Civil Procedure Rules; a replying affidavit was omitted from the record without leave; and the certificate required under Rule 85(5) was missing. Counsel for the appellant conceded procedural lapses but urged that they were mere technicalities that should not defeat the ends of justice, invoking the Constitution. The Court of Appeal, per a unanimous bench, held that the lapses were minor and excusable, capable of being rectified and sufficiently cured under Article 159(2)(e) of the Constitution and sections 3A and 3B of the Appellate Jurisdiction Act. It gave leave to either party to file a supplementary record within seven days and dismissed the application with no orders for costs. This ruling binds subordinate courts on the excusability of minor procedural lapses in the preparation of a record of appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appeal should be struck out for being filed out of the prescribed time under Rule 81 of the Court of Appeal Rules
  2. 2.Whether the record of appeal was incompetent by reason of an invalidly extracted order, omission of a replying affidavit, and absence of the certificate required under Rule 85(5)
  3. 3.Whether procedural lapses in the record of appeal should be excused in light of Article 159(2)(e) of the Constitution and the overriding objective in sections 3A and 3B of the Appellate Jurisdiction Act

Key legal issues

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01

Whether procedural technicalities in a record of appeal warrant striking out the appeal

Holding

The court declined to strike out the appeal, holding that the lapses were minor, excusable and capable of rectification, and that justice must be administered without undue regard to procedural technicalities.

Reasoning

The court accepted there were procedural lapses but found them excusable on the explanation given by counsel for the appellant. It invoked Article 159(2)(e) of the Constitution and sections 3A and 3B of the Appellate Jurisdiction Act, which require the just, expeditious, proportionate and affordable resolution of appeals. It therefore cured the defects by allowing a supplementary record within 7 days rather than striking out the appeal.

p. 2

Legal principles established

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  • Minor procedural lapses in the preparation of a record of appeal may be excused and cured under Article 159(2)(e) of the Constitution and the overriding objective in sections 3A and 3B of the Appellate Jurisdiction Act, and do not by themselves justify striking out an appeal.

Court orders

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  1. 1.Leave granted to either party to file a supplementary record within 7 days incorporating any essential documents not previously incorporated in the record
  2. 2.The application to strike out the appeal be and is hereby dismissed with no orders for costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

EO
majority
JO
majority
JN
majority
On appeal from
High Court of Kenya at Mombasa
H.C.C.C. No. 8 of 2007
Jurisdiction invoked
Rules 42(1) and 80 of the Court of Appeal Rules

Relief refused

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Striking out the appeal with costs to the applicant

The minor procedural lapses were excusable and curable under Article 159(2)(e) and sections 3A and 3B of the Appellate Jurisdiction Act

p. 3

Costs

The application to strike out the appeal was dismissed with no orders for costs - each party to bear their own costs of the application.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

justice shall be administered without undue regard to procedural technicalities.
p. 2Procedural technicalities - Article 159(2)(e)
the minor procedural lapses in preparation of the record of appeal are capable of being rectified and are sufficiently cured by the provisions of the Appellate Jurisdiction Act cited above.
p. 3Curability of defects in the record of appeal
Consequently, we order that the application to strike out the appeal be and is hereby dismissed but with no orders for costs.
p. 3Final orders - dismissal of striking-out application

Issues in the judgment

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minor

The party name is spelt inconsistently - 'NDEGWAR' in the title and 'NDEGWA' in the body of the ruling.

minor

The counsel for the appellant cited Article 159(2)(d) but the court quoted Article 159(2)(e) as the operative provision.

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, "Housing Finance Company of Kenya v Rose Wangari Ndegwar [2011] KECA 344 (KLR)", Case Analysis (2011). Civil Appeal (Application) No. 83 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/344/eng@2011-03-04

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