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Court of AppealDismissedNot stated in the judgment (application dated March 23, 2022 in the appeal against the High Court judgment of Onyiego J.)· [2023] KECA 982 (KLR)

MZM v JMM & 3 others (Civil Appeal (Application) E024 of 2022) [2023] KECA 982 (KLR)

Court of Appeal
28 July 2023
2,518 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that a defective appeal cannot be struck out entirely for technical formatting problems; the case must be heard on its merits.

What this practically means

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Executive summary

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This was a Notice of Motion dated March 23, 2022 by JMM, the 1st respondent, seeking to strike out in its entirety the appeal of MZM, the appellant, against the High Court judgment of Onyiego J. delivered on December 23, 2021. The underlying dispute concerned family land in Taita Taveta, claimed by the appellant as matrimonial property, with the 1st respondent claiming to be a purchaser of one of the parcels. The High Court had allowed the 1st respondent's application to be joined as an interested party and ordered the suit heard de novo, prompting the appellant's second appeal. The 1st respondent attacked the memorandum of appeal as incompetent for raising matters of fact on a second appeal contrary to sections 79D and 72(1) of the Civil Procedure Code, for lacking certainty and specificity under Rule 88(1), and the record of appeal for altered and uncertified documents contrary to Rule 89(2) and 89(5). The appellant opposed, arguing among other things that an interested party cannot seek to strike out an appeal. The Court of Appeal, in a unanimous judgment delivered at Mombasa on July 28, 2023 (Nyamweya, Lesiit and Odunga, JJ.A), dismissed the application. It held the complaints were of form and not of content going to the substance, that the striking-out power must be exercised carefully, and that the proper remedy for defective documents is to strike out those documents rather than the whole record. The appeal was to proceed to hearing on the merits, with costs of the application to the appellant.

Key legal issues

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01

Whether an appeal should be struck out where the memorandum of appeal and record of appeal are challenged for lack of form rather than content

Holding

No. The striking-out power is discretionary and to be exercised carefully; complaints of form alone do not warrant striking out the entire memorandum and record of appeal, which should proceed to hearing on the merits.

Reasoning

The court distinguished between the content requirements of Rules 88(1) and 89(2) and challenges based on form. The 1st respondent did not contend the records fell short of the content of the Rules relied upon; the challenge was to form - specificity of grounds, certification, and pagination. The appellant's uncontradicted explanation that facts may be applied in reaching conclusions of law went unanswered. Complaints about form should target the offending documents, not the whole record.

p. 5
02

Whether an interested party can bring an application to strike out an appeal

Holding

Argued by the appellant, relying on authority, that an interested party cannot seek to strike out a suit on grounds of defective pleadings; the court did not make a definitive ruling on this point, dismissing the application on the form-versus-content ground.

Reasoning

Counsel for the appellant relied on the Trusted Society of Human Rights v Mumo Matemu authority for the proposition that an interested party cannot seek to strike out a suit for defective pleadings. The court, however, disposed of the application on the basis that the complaints were of form and not of substance, without expressly adopting or rejecting the interested-party argument.

p. 4

Legal principles established

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  • The power to strike out a notice of appeal or record of appeal for want of form or failure to follow the rules of procedure is discretionary and must be exercised carefully, only where the party at fault flagrantly, deliberately, flippantly or recklessly failed to follow the rules; procedural rules are handmaidens of justice, not instruments to defeat it.
  • Where complaints against a record of appeal concern form rather than content, the remedy is to apply to strike out the offending documents in the record rather than the whole record of appeal.

Court orders

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  1. 1.The 1st respondent's Notice of Motion application dated March 23, 2022 seeking to strike out the appellant's appeal is dismissed
  2. 2.Costs of the application awarded to the appellant
On appeal from
High Court
Not stated
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal under the Court of Appeal Rules (Rule 84, 86(1) and 87(5) [now 86, 88(1) and 89(5) of the 2022 Rules]); the court was determining a striking-out application within a second appeal

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "MZM v JMM & 3 others (Civil Appeal (Application) E024 of 2022) [2023] KECA 982 (KLR)", Case Analysis (2023). Not stated in the judgment (application dated March 23, 2022 in the appeal against the High Court judgment of Onyiego J.). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/982/eng@2023-07-28

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