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Court of AppealPartially AllowedCivil Appeal (Application) No. 42 of 2014· [2015] KECA 956 (KLR)

Dinah Wairimu Njogu v Ngugi Njurumbe

Court of Appeal of Kenya
3 February 2015
AVAlnashir VisramMartha Karambu KoomeMartha KoomeJOJ. Otieno-Odek
1,155 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an appeal because the appeal record was incomplete and uncertified, confirming these requirements cannot be waived.

What this practically means

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Executive summary

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The applicant, Dinah Wairimu Njogu, applied under Rules 42 and 84 of the Court of Appeal Rules to strike out the respondent's appeal lodged on 26th August 2014 against the judgment of the High Court at Nyeri (Sergon, J.) in H.C.C.A No. 107 of 2009. She contended that the Record of Appeal omitted primary documents from Kigumo SRMCC No. 143 of 2008 and the High Court appeal - pleadings, proceedings, decree, exhibits, memorandum of appeal and submissions - and had not been certified as correct by the respondent's counsel as required by Rule 87(5). The respondent's counsel sought leave to file a reply, which the Court refused, finding the three-month delay in responding unexplained and unreasonable. On timeliness, the Court held that since the date of service of the record could not be determined, the application filed on 23rd September 2014 fell within the 30-day window in the proviso to Rule 84. On the merits, the Court found the omitted documents essential to the appeal and certification essential to accuracy; the respondent had neither filed a supplementary record under Rule 88 nor sought leave. The Court held the record defective and incapable of being cured by the overriding objective, applying City Chemist v Oriental Commercial Bank on the limits of the overriding objective. The application was allowed, the appeal struck out, and the applicant awarded costs. This ruling binds subordinate courts and the High Court on the mandatory requirements for a proper Record of Appeal.

Key legal issues

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01

Timeliness of the striking-out application under Rule 84

Holding

Since the date of service of the Record of Appeal could not be determined, the application filed on 23rd September 2014 was within the 30-day period and properly before the Court.

Reasoning

Rule 84 bars striking-out applications brought more than 30 days after service of the Notice of Appeal or Record of Appeal. The record was filed on 26th August 2014 but the date of service was not ascertainable. Assuming service on the filing date or later, the application filed on 23rd September 2014 fell within the prescribed period.

p. 2
02

Consequences of omissions and lack of certification in the Record of Appeal

Holding

The omission of primary documents essential to the appeal, and the failure to certify the record, rendered the record defective; the respondent neither filed a supplementary record under Rule 88 nor sought leave, so the appeal was struck out.

Reasoning

Rule 87(1) prescribes mandatory contents of a record of appeal, including pleadings, notes, transcripts and exhibits, and Rule 87(5) requires certification. Rule 88 permits a supplementary record within 15 days or with leave. The respondent did neither. The defects were incurable by the overriding objective, which does not displace settled principles on instituting appeals.

p. 3

Legal principles established

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  • A Record of Appeal that omits primary documents and is not certified as correct under Rule 87(5) is defective and the defect cannot be cured by the overriding objective.
  • Certification of a Record of Appeal is essential in determining its accuracy.
  • The overriding objective does not uproot well-established principles and precedents in the exercise of judicial discretion.

Court orders

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  1. 1.The application is allowed and the appeal lodged on 26th August, 2014 is struck out
  2. 2.The applicant shall have the costs of the application

Authorities

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Legislation

  • Court of Appeal RulesRule 42
  • Court of Appeal RulesRule 84
  • Court of Appeal RulesRule 87(1)
  • Court of Appeal RulesRule 87(5)
  • Court of Appeal RulesRule 88
  • Court of Appeal RulesRule 92(3)
  • Court of Appeal RulesRule 22

Cases cited (1)

  • City Chemist (NRB) & Others -vs- Oriental Commercial Bank Ltd
    Civil Application No. Nai. 302 of 2008

    The overriding objective does not uproot well-established principles or precedents in the exercise of judicial discretion.

On appeal from
High Court of Kenya at Nyeri
H.C.C.A No. 107 of 2009
Jurisdiction invoked
Rules 42 & 84 of the Court of Appeal Rules (application to strike out an appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Dinah Wairimu Njogu v Ngugi Njurumbe", Case Analysis (2015). Civil Appeal (Application) No. 42 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/956/eng@2015-02-03

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