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Court of AppealDismissedCivil Appeal (Application) 83 of 2018· [2022] KECA 1281 (KLR)

Wanyoike & 23 others v Pan Africa Insurance Company Limited & 2 others

Court of Appeal
18 November 2022
ASAsike-MakhandiaJMJamila MohammedHOH. A. Omondi
2,278 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 allegedly missing documents, confirming that incomplete records can be fixed through a supplementary record.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Makhandia, Mohammed and H.A. Omondi, JJAA) on a notice of motion dated April 4, 2018 by Jane Njeri Wanyoike and 23 others, applicants in a pending appeal, seeking to strike out the memorandum and entire record of appeal filed by Pan Africa Insurance Company Limited and two others against the judgment of Mbaru, J in ELRC Case No 2001 of 2015 delivered on October 19, 2017. The applicants contended that the respondents breached rules 87(1)(c)(f) and (k) by omitting primary documents, including the 16th party's witness statement and annexures, and sought to have the notice of appeal deemed withdrawn under rule 83. The respondents countered that the documents were on record, that the record was confined to essential documents, and that rule 92 allowed supplementary records. The Court first confirmed the application was filed within the thirty-day window under rule 84. On the merits, it found the alleged missing documents were in fact on record, with authenticity questions reserved for the hearing of the appeal. It held that even if documents were omitted, rule 92(1) provides a remedy through a supplementary record, applying Sacco Societies Regulatory Authority v Biashara Sacco Society Ltd and Salat v IEBC against the drastic remedy of striking out for procedural infractions causing no prejudice. The motion was dismissed with costs to the respondents. The decision is binding on subordinate courts on the propositions that a competent appeal cannot be struck out merely for an incomplete record and that procedural lapses not going to jurisdiction or the root of the dispute should not attract draconian remedies.

Key legal issues

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01

Timeliness of the rule 84 application

Holding

The application, complaint being against service of the record of appeal served on March 22, 2018, was filed within the 30-day window and fell for merit consideration.

Reasoning

Rule 84 requires an application to strike out to be brought within thirty days of service of the notice of appeal or record of appeal. The applicants' complaint was hinged on service of the record of appeal, not the notice of appeal. The record was served on March 22, 2018 and the motion was dated April 4, 2018, hence within time.

02

Whether the alleged missing documents are essential/primary documents and truly missing

Holding

The documents said to be missing are on record; any question of authenticity is for the hearing of the appeal, and the Court doubted whether the documents are primary documents.

Reasoning

The Court examined the record and found the 16th party's witness statement and annexures present, albeit with date discrepancies between the parties' versions. Authenticity cannot be determined at the interlocutory stage. Further, the alleged missing documents were only adumbrated in submissions, not specifically mentioned in the motion.

p. 3
03

Availability of a curial remedy for an incomplete record

Holding

Rule 92(1) provides a remedy: a respondent who considers the record defective or insufficient may lodge a supplementary record of appeal, so striking out is unwarranted.

Reasoning

Even if the documents were not on record, rule 92(1) allows the filing of a supplementary record of appeal containing further documents required for the proper determination of the appeal. Following Sacco Societies Regulatory Authority v Biashara Sacco Society Ltd, a competent appeal cannot be struck out for omission of a document, otherwise rule 92 would serve no purpose.

04

Whether the drastic remedy of striking out should issue

Holding

The applicants failed to demonstrate that the appeal deserved striking out; procedural lapses not going to the root of the dispute or causing prejudice should not attract draconian punishment.

Reasoning

Applying Salat v IEBC, deviations from form and procedure that do not go to jurisdiction, the root of the dispute, or occasion prejudice should not be elevated to an invalidating infraction. The notice of appeal was timeously filed and the record filed within the Certificate of Delay window; no basis for striking out was made out.

p. 4

Legal principles established

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  • A competent appeal cannot be struck out merely because a document alleged to be required was omitted from the record of appeal, since rule 92 provides for a supplementary record.
  • Procedural infractions that do not go to jurisdiction, the root of the dispute, or cause no prejudice should not attract the drastic remedy of striking out.
  • An application to strike out a notice of appeal or appeal under rule 84 must be brought within thirty days of service of the notice of appeal or record of appeal.
  • Rule 83's deeming provision is an inbuilt case-management tool enabling the Court to strike out notices of appeal not followed by records of appeal within 60 days, including on its own motion.

Court orders

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  1. 1.The notice of motion dated April 4, 2018 is dismissed
  2. 2.Costs of the application to the respondents

Authorities

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Legislation

  • Constitution of Kenya 2010Article 159
  • Court of Appeal Rules 2010Rule 75
  • Court of Appeal Rules 2010Rule 77
  • Court of Appeal Rules 2010Rule 82
  • Court of Appeal Rules 2010Rule 83
  • Court of Appeal Rules 2010Rule 84
  • Court of Appeal Rules 2010Rule 85(1)
  • Court of Appeal Rules 2010Rule 87(1)(c)(f) and (k)
  • Court of Appeal Rules 2010Rule 88
  • Court of Appeal Rules 2010Rule 92(1)
  • Court of Appeal Practice Directions 2015Rule 2
  • Appellate Jurisdiction ActSections 3A and 3B

Cases cited (4)

  • Kenya Airways Corporation Limited v Tobias Ong’any Auma & 5 others
    Civil Application No 13 of 2002

    Failure to file primary documents renders an appeal incurably defective as rule 85(1) is couched in mandatory terms (cited by applicants).

  • Sacco Societies Regulatory Authority v Biashara Sacco Society Ltd
    [2013] eKLR

    A party may file missing documents under rule 92; a competent appeal cannot be struck out for omission of a document.

  • John Mutai Mwangi & 26 others v Mwenja Ngure & 4 others
    [2016] eKLR

    Exposition on the intent and purport of rule 83 as an inbuilt case-management deeming provision.

  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 others

    Caution against striking out appeals for procedural infractions that cause no prejudice or miscarriage of justice.

On appeal from
Employment and Labour Relations Court
ELRC Case No 2001 of 2015
Jurisdiction invoked
Rules 83, 84 and 87(1)(c)(f) and (k) of the Court of Appeal Rules 2010 (interlocutory application in a pending 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, "Wanyoike & 23 others v Pan Africa Insurance Company Limited & 2 others", Case Analysis (2022). Civil Appeal (Application) 83 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1281/eng@2022-11-18

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