Tropicana Hotels Limited v SBM Bank (Kenya) Limited (formerly known as Fidelity Commercial Bank Ltd [2020] KECA 234 (KLR)

The complaint under Rule 84 was hinged not on the service of the notice of appeal but on the service of the record of appeal, which was served on 13th February 2019. Computing thirty days from that date, accounting for February 2019 having only twenty-eight days, the deadline fell on 15th March 2019, the very day the application was filed. The proviso to Rule 84 was therefore satisfied.

The respondent had timeously lodged a notice of appeal and complied with Rules 75 and 77, but was required to file the record of appeal within sixty days under Rule 82(1). The proviso excludes time certified by the registrar as required for preparing and delivering a copy of the proceedings, provided the application for the copy was made in writing within thirty days and served. No demonstration of that circumstance was placed before the Court.

Rule 87 enumerates the documents that must form the record of appeal, including pleadings, the judgment or order appealed against and a certified copy of the decree. Rule 87(1)(c) refers to "pleadings" without qualification to current pleadings only. The only exceptions are documents a judge or registrar of the court below directs to be excluded under Rule 87(3). No such directions were given, so the omissions, uncontroverted by the respondent, vitiated the record.

The Court relied on its earlier exposition in John Mutai Mwangi describing Rule 83 as an inbuilt case-management clean-up mechanism that enables the Court to deem withdrawn notices of appeal not backed by records of appeal, exercisable on the Court's own motion or on application. However, the Court held that on the facts, Rule 83 applies where the Court has moved suo motu, which was not the case here.