DANIEL MUSINGA T/A MUSINGA & COMPANY ADVOCATES v NATION NEWSPAPERS LIMITED [2011] KECA 352 (KLR)
The bottom line
#Kenya's Court of Appeal declined to strike out an appeal over missing pages, holding that fixing the record beats killing the case on a technicality.
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 being incurably defective owing to missing and incomplete proceedings
- 2.Whether the applicant's failure to lodge a supplementary record of appeal under rule 92 was a proper course, and whether the interests of justice favoured striking out the appeal or completing the record
Key legal issues
#Whether an incomplete record of appeal should be struck out
The application to strike out was dismissed; the proper remedy for a defective record is a supplementary record of appeal, since striking out for an innocent omission would defeat the interests of justice
The court found the record incomplete, with vital pages of proceedings missing, so the appeal could not be effectively heard as it stood. However, blame did not lie with the appellant or its counsel, who compiled the record from documents supplied by the Deputy Registrar. Where the digression is innocent, the interests of justice require the missing copies to be incorporated under rule 92 so the appeal is determined on merit rather than struck out on a technicality, consistent with the overriding objectives in sections 3A and 3B of the Appellate Jurisdiction Act and sections 1A and 1B of the Civil Procedure Act.
The proper procedural remedy of a respondent who identifies gaps in a record of appeal
The respondent ought to have lodged a supplementary record of appeal containing the missing copies, which would have rendered the striking-out application superfluous
The court held that the applicant, having first noted the omission, had a self-help remedy expressly provided by the Rules: lodging a supplementary record of appeal containing the missing copies. Had that been done, the striking-out application would have been unnecessary and the appeal would have proceeded to a hearing on merit, saving time and expense. The court thereby discourages technical striking-out applications where a curative procedural route exists.
Legal principles established
#- Where a record of appeal is incomplete through innocent digression, the court will order supplementation of the record under rule 92 rather than strike out the appeal on a technicality, so that the appeal is heard on merit
- Where a party realises that a record of appeal is defective and insufficient by reason of missing proceedings, the correct course is to lodge a supplementary record of appeal under rule 92 rather than apply to strike out the record
Court orders
#- 1.The respondent (appellant in the appeal) is ordered to file and serve a supplementary record of appeal containing all the missing copies of proceedings and documents within 21 days
- 2.The application is dismissed
- 3.Costs shall 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 Mombasa
- HCCS No. 102 of 2000
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal under the Appellate Jurisdiction Act (Cap 9) and the Court of Appeal Rules over an application to strike out a record of appeal
Relief refused
#Order striking out the record of appeal for being incurably defective
The omission of pages of proceedings was innocent; the respondent compiled the record from documents supplied by the Deputy Registrar, and the interests of justice favoured completion of the record rather than striking out the appeal on a technicality
Costs
Costs 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.
Litigants and their advocates are mandated to observe the rules of the Court and its process in order to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes.
the interests of justice must prevail which in this case is that the missing copies of proceedings and documents be put in the record of appeal under rule 92 aforesaid so that the appeal may be heard and determined on merit rather than striking it out on a technicality
The applicant on realizing the omission which rendered the record defective and insufficient could have lodged a supplementary record of appeal containing the missing copies as is provided for by rule 92 of the Rules of the Court 2010 (formerly rule 89).
In the result, we order the respondent to file and serve a supplementary record of appeal containing all the missing copies of proceedings and documents within 21 days hereof.
It must follow, therefore, that the application fails and is accordingly dismissed. Costs shall be in the appeal.
Issues in the judgment
#The judgment refers to the Rules of the Court 2010 and explains that a notice of appeal was filed in 2005, while the application was lodged in 2008; the court cites the 2010 Rules in a ruling dated 4 March 2011, which is consistent, but the coram heading describes the matter as an appeal whereas the ruling determines an interlocutory striking-out application only.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "DANIEL MUSINGA T/A MUSINGA & COMPANY ADVOCATES v NATION NEWSPAPERS LIMITED [2011] KECA 352 (KLR)", Case Analysis (2011). Civil Appeal (Application) No. 120 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/352/eng@2011-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.