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Court of AppealDismissedNot stated in the judgment as provided· [2021] KECA 44 (KLR)

Intercounties Importers & Exporters v Teleposta Pension Scheme Registered Trustees & 5 others (Civil Appeal (Application) 293 of 2016) [2021] KECA 44 (KLR)

Court of Appeal
23 September 2021
WKW. KaranjaDMD. K. MusingaSKS. Gatembu Kairu
2,613 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to strike out an appeal over an incomplete record, ruling parties should fix gaps with a supplementary record instead of killing appeals.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Court of Appeal, Nairobi, in an application by Intercounties Importers and Exporters (the applicant, appellant in the main appeal) seeking to strike out the record of appeal filed by Teleposta Pension Scheme Registered Trustees (the 1st respondent) in an appeal against a High Court judgment of 27th July 2016 in HCCC No. 140 of 2004, in which the trial court had declared the applicant the lawful owner of L.R. No. 209/13238 and declined to cancel its title for fraud. The applicant argued the record omitted primary documents and was filed out of time without leave. The court framed two issues: whether the record was incompetent, and whether the appeal was out of time. On timeliness, the court found that a consent order adopted on 27th September 2016 gave the respondents six months to file the appeal, an averment uncontroverted by the applicant, so the appeal was filed within time. On incompleteness, the court applied its own precedents (Deepak Chamanlal Kamani; Peter Obwogo) holding that striking out is discretionary, not automatic, and that procedure rules are handmaidens of justice, while also reaffirming (Patricia Cherotich Sawe; Jaldesa Tuke Debelo) that Article 159(2)(d) and sections 3A and 3B are not a panacea for procedural default. Noting that the omitted documents could not be found in the High Court record, that the 1st respondent's explanation was accepted, and that the applicant itself had failed to invoke Rule 97 to file a supplementary record, the court dismissed the application, gave the applicant 45 days to file and serve a supplementary record, directed that failing which the appeal proceeds on the record as filed, and ordered costs of the application to abide the outcome of the appeal. The decision below was not disturbed; the main appeal remains pending.

Key legal issues

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01

Whether the record of appeal is fatally defective for omitting primary documents

Holding

No. Where the omitted documents cannot be found in the High Court record and their omission was not deliberate, striking out the appeal would not serve the ends of justice; a supplementary record may be filed.

Reasoning

The court relied on Deepak Chamanlal Kamani and Peter Obwogo, holding that procedure rules are handmaidens of justice and that striking out for incompleteness caused by unavailability of documents would not facilitate just, expeditious and proportionate disposal. The applicant itself was enjoined to file a supplementary record under Rule 97 but did not. Either party may still file a supplementary record with leave.

p. 5
02

Whether the appeal was filed out of time

Holding

No. A consent order adopted on 27th September 2016 extended the time to file the appeal to six months, i.e. up to 27th March 2017, and the record of appeal was filed and served within that period.

Reasoning

The 1st respondent pleaded the consent order, which was annexed to its replying affidavit, endorsed and adopted as an order of the Court. The applicant and 6th respondent did not controvert it in affidavit or submissions. The court verified the consent and found the appeal, filed 13th December 2016 and served 12th January 2017, was within time.

p. 5
03

The limits of Article 159(2)(d) and sections 3A and 3B as cures for procedural default

Holding

Article 159(2)(d) and sections 3A and 3B are not a panacea for procedural shortfalls and cannot be used to derogate from express statutory procedures; statutory timelines are not procedural technicalities.

Reasoning

Relying on Patricia Cherotich Sawe and Jaldesa Tuke Debelo, the court reiterated that rules of procedure ensure predictability and good order, and where a clear procedure is prescribed it should be strictly followed. However, the same principles cut both ways: a court's discretion to strike out must be exercised judicially and not automatically.

p. 5

Legal principles established

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  • Neither Article 159(2)(d) of the Constitution nor sections 3A and 3B of the Appellate Jurisdiction Act excuses parties from complying with statutory procedures and timelines; statutory timelines are not mere procedural technicalities.
  • An appeal should not automatically be struck out for an incomplete record where a supplementary record can cure the deficiency without prejudice; the discretion under Rule 84 must be exercised judicially in the circumstances of each case.
  • A party who deems the record of appeal incomplete may itself be required to file a supplementary record under Rule 97 rather than have the appeal struck out.

Court orders

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  1. 1.The application to strike out the appeal is dismissed
  2. 2.The applicant has 45 days within which to file and serve a supplementary record of appeal to bring on board any relevant documents in its possession omitted from the record
  3. 3.If no supplementary record is filed and served as ordered, the appeal to proceed for hearing with the record as filed
  4. 4.Costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 159
  • Civil Procedure ActSections 1A and 1B
  • Appellate Jurisdiction ActSections 3A and 3B
  • Court of Appeal Rules, 2010Rule 88
  • Court of Appeal Rules, 2010Rule 92(1)
  • Court of Appeal Rules, 2010Rule 97
  • Court of Appeal Rules, 2010Rule 84
  • Court of Appeal Rules, 2010Rule 89(3)

Cases cited (8)

  • Daniel Musinga t/a Musinga & Company Advocates vs Nation Newspapers Limited
    (2011) eKLR
  • Sacco Societies Regulatory Authority vs Biashara Sacco Society Limited
    (2013) eKLR
  • Mohammed Aden Abdi vs Abdi Nuru Omar & 2 Others
    (2007) eKLR
  • Salama Beach Hotel Limited & 4 Others vs Kenyariri & Associates Advocates & 4 Others
    (2016) eKLR
  • Deepak Chamanlal Kamani & Another vs. Kenya Anti-Corruption Commission and 3 Others, Civil Appeal (Application) No. 152 of 2009
    unreported
  • Peter Obwogo O & 2 others vs H O Suing as Next Friend of P O (Minor) & Another [2017] eKLR, Eldoret Civil Appeal (Application) No. 8 of 2017
    [2017] eKLR
  • Patricia Cherotich Sawe vs IEBC & 4 Others
    [2015] eKLR
  • Jaldesa Tuke Debelo versus IEBC and Another
    [2015] eKLR
On appeal from
High Court
HCCC No. 140 of 2004
Jurisdiction invoked
Inherent/appellate jurisdiction of the Court of Appeal under the Appellate Jurisdiction Act (sections 3A and 3B) and the Court of Appeal Rules, 2010, in an interlocutory application within 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 (7)

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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, "Intercounties Importers & Exporters v Teleposta Pension Scheme Registered Trustees & 5 others (Civil Appeal (Application) 293 of 2016) [2021] KECA 44 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/44/eng@2021-09-23

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