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Court of AppealDismissedCivil Appeal (Application) No. 94 of 2014· [2015] KECA 628 (KLR)

Doris M. Wanjiru Kinuthia & 2 others v Purity Ndirangu [2015] KECA 628 (KLR)

Court of Appeal
19 June 2015
GKG. B. M. KariukiJOJ. Otieno-OdekFSF. Sichale
747 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 for an incomplete record, ruling that fixing the record is a shared duty, not just the appellant's.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Court of Appeal at Nairobi (Kariuki, Odek and Sichale, JJ.A) on a notice of motion dated 30 May 2014 by Doris M. Wanjiru Kinuthia, the second respondent in a pending appeal by Purity Ndirangu against the ruling of Kimaru, J. dated 20 June 2013 in Succession Cause No. 1574 of 1994. The applicant sought striking out of the record of appeal on the ground that it omitted fundamental primary documents, including the petition for grant of letters of administration and the application for revocation of the grant, and had been filed and served incomplete. The court held that the Court of Appeal Rules make the completeness of the record a shared responsibility: rule 88 allows an appellant to file a supplementary record within 15 days without leave, or later with leave, while rule 92(1) empowers a respondent who considers the record defective or insufficient to lodge a supplementary record containing further documents. The appellant had not availed himself of rule 88, but the applicant equally had not invoked rule 92. The application to strike out therefore failed. Instead, the court directed the appellant to file a supplementary record of appeal, including interlocutory proceedings directly relevant to the appeal, within 30 days, and ordered the appellant to bear the costs of the application. The lower court's decision was not disturbed at this stage; the substantive appeal remains pending.

Key legal issues

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01

Whether an incomplete record of appeal justifies striking out the appeal

Holding

No. The completeness of the record is a shared responsibility; the respondent's remedy is to lodge a supplementary record under rule 92, and the court directed a supplementary record instead of striking out the appeal.

Reasoning

Rule 88 permits an appellant to file a supplementary record within 15 days without leave, or with leave thereafter, which the appellant did not do. Rule 92 however empowers a respondent who considers the record defective or insufficient to lodge a supplementary record containing further documents. Because the petitioner for grant of letters of administration and the application for revocation were omitted, the applicant too could have supplemented the record. Striking out was therefore not warranted; the court directed a supplementary record within 30 days.

p. 2

Legal principles established

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  • Responsibility for a complete record of appeal is shared between the appellant and the respondent; a respondent who considers the record deficient must lodge a supplementary record rather than seek striking out
  • An appeal will not be struck out merely because the record of appeal is incomplete where the respondent had a remedy to supplement the record

Court orders

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  1. 1.The application to strike out the record of appeal is dismissed
  2. 2.The appellant shall file a supplementary record of appeal, including such other documents as may be necessary for the proper determination of the appeal, within 30 days
  3. 3.The costs of the application shall be borne by the appellant/respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 87
  • Court of Appeal RulesRule 88
  • Court of Appeal RulesRule 92(1)
On appeal from
High Court of Kenya at Nairobi
Succession Cause No. 1574 of 1994
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal under the Court of Appeal Rules; the application was brought under Rule 92 of the Court of Appeal Rules in a pending appeal

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Doris M. Wanjiru Kinuthia & 2 others v Purity Ndirangu [2015] KECA 628 (KLR)", Case Analysis (2015). Civil Appeal (Application) No. 94 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/628/eng@2015-06-19

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