Truphosa Cheredi Mudembei & another v John. K. Malembi [2017] KECA 346 (KLR)
The bottom line
#Kenya's Court of Appeal refused to strike out an appeal filed on time under a delay certificate, ruling a missing decree can be fixed with a supplementary record.
What this practically means
#Executive summary
#Key legal issues
#Whether the record of appeal was lodged within the 60-day period prescribed by Rule 82(1) of the Court of Appeal Rules
The record of appeal was filed in time because the period between the application for typed proceedings and their readiness for collection, as certified in the Certificate of Delay, was excluded from the computation of time.
Rule 82(1) requires an appeal to be instituted within 60 days of the notice of appeal, subject to a proviso excluding time certified by the Registrar as required for preparing and delivering proceedings. The respondent's advocate bespoked proceedings by letter, and a Certificate of Delay confirmed that the typed proceedings were only ready on 5th August 2016. Excluding that period, the filing on 20th September 2016 fell within the 60 days.
Whether the absence of a certified copy of the decree from the record of appeal is a fatal defect
The omission is not fatal; the certified decree may be introduced through a supplementary record of appeal, and the appeal should proceed to be determined on merit, particularly as it involves the emotive issue of land.
The omission was admitted but the court held it curable under the Court of Appeal Rules through a supplementary record of appeal. The court declined to condone sloppiness yet emphasized its obligation to dispense substantive justice rather than dispose of matters on technicalities, invoking Article 159(2)(d) of the Constitution. It directed the respondent to file a supplementary record introducing the decree within 7 days.
Legal principles established
#- Where an appellant has applied for copies of proceedings and the delay in their preparation is certified by the Registrar, the certified period is excluded from the computation of the 60 days for lodging the memorandum and record of appeal under Rule 82(1) of the Court of Appeal Rules.
- Omission of a certified copy of the decree from the record of appeal is a curable irregularity that may be remedied by filing a supplementary record of appeal with leave of the Court, and does not warrant striking out the appeal.
- The Court has an obligation to administer substantive justice rather than disposing of matters on technicalities.
Court orders
#- 1.The applicants' notice of motion dated 19th October 2016 seeking to strike out the appeal is dismissed
- 2.The respondent is directed to file a supplementary record of appeal introducing the decree within 7 days from the date of the ruling
- 3.No order as to costs
- On appeal from
- High Court of Kenya at Eldoret
- Civil Suit No. 248 of 2000
- Jurisdiction invoked
- Court of Appeal Rules (Rule 82(1)) - interlocutory application to strike out an appeal lodged in the sub-registry at Eldoret
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Autoports Freight Terminal Limited v Kenya Ports Authority [2019] KECA 529 (KLR)[2019] KECA 529 (KLR)11 Jul 2019followed
Cite this brief
#Cite this brief
Caselaw, "Truphosa Cheredi Mudembei & another v John. K. Malembi [2017] KECA 346 (KLR)", Case Analysis (2017). Civil Appeal (Application) No. 81 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/346/eng@2017-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.