MZM v JMM & 3 others (Civil Appeal (Application) E024 of 2022) [2023] KECA 982 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#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
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.
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.
Whether an interested party can bring an application to strike out an appeal
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.
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.
Legal principles established
#- 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
#- 1.The 1st respondent's Notice of Motion application dated March 23, 2022 seeking to strike out the appellant's appeal is dismissed
- 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
#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.
Cite this brief
#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.