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Court of AppealDismissedCivil Application No. Nakuru 3 of 2020· [2023] KECA 990 (KLR)

Teachers Service Commission v Kamau & 19 others (Civil Application E003 of 2021) [2023] KECA 990 (KLR)

Court of Appeal of Kenya
28 July 2023
1,702 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 ruled that a missing decree in a record of appeal is a curable defect, not a reason to throw out the appeal.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nakuru (Ochieng, Achode and Korir JJJA) on a notice of motion dated January 26, 2021 by the Teachers Service Commission's opponents - the applicants, Simon P. Kamau and 19 others - seeking to strike out the respondents' record of appeal (the TSC's appeal against a ruling of Lady Justice J. Mulwa dated October 17, 2019) for failure to include a certified copy of the order appealed against, as required by rule 87(1) of the Court of Appeal Rules, 2010, and to strike out prayer (b) of the memorandum of appeal. The applicants relied on Tropicana Hotels Ltd vs SBM Bank and on authority holding the omission fatal, including Floris Pierro, Municipal Council of Kitale vs Fedha and the Supreme Court's Bwana Mohamed Bwana decision. The respondents' counsel accepted the omission but sought leave to file a supplementary record, explaining delays in obtaining instructions from the respondents, all elderly retirees over 80. Framing the sole issue as whether the appeal was defective for failure to include the decree appealed from, the court held that the omission does not of itself obstruct justice and is curable upon an appropriate application. Emphasising the shift towards substantive justice over technicalities, it found the respondents' explanation plausible, rejected the application, and ordered that the costs of the application abide the outcome of the appeal. The judgment articulates a binding rule for lower courts: a missing decree in a record of appeal is not automatically fatal where curable.

Key legal issues

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Whether an appeal is fatally defective for failure to include the certified decree or order appealed from in the record of appeal under rule 87(1) of the Court of Appeal Rules, 2010

Holding

The omission does not of itself obstruct justice and is curable; the appeal is not struck out where the omission may be remedied on application.

Reasoning

The court acknowledged prior authority (Floris Pierro; Municipal Council of Kitale vs Fedha; Bwana Mohamed Bwana) treating the omission of a decree as fatal, but also noted Richard Ncharpi Leiyagu on the shift towards substantive justice over technicalities. Balancing these strands, and given the respondents' plausible explanation (elderly retirees difficult to get instructions from), the court held the defect curable and declined to strike out the appeal.

p. 4

Legal principles established

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  • Omission of the decree or certified order from the record of appeal does not by itself render an appeal fatally defective; the defect is curable upon an appropriate application.

Court orders

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  1. 1.The applicants' notice of motion dated January 26, 2021 seeking to strike out the respondents' record of appeal is rejected/dismissed
  2. 2.The costs of the application shall abide the outcome of the appeal: if the appeal is not successful the respondents will pay the applicants' costs; if the appeal succeeds, the respondents shall be awarded the costs of the application

Authorities

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Legislation

  • Appellate Jurisdiction Actsections 3, 3A, 3B
  • Court of Appeal Rules, 2010rules 42, 43, 45, 79, 84, 87(1)

Cases cited (5)

  • Tropicana Hotels Limited vs SBM Bank (Kenya) Limited (formerly known as Fidelity Commercial Bank Ltd)
    [2020] eKLR
  • Floris Pierro vs Giancarlo Falasconi, CA No. 145 of 2012
  • Municipal Council of Kitale vs Fedha
    [1983] eKLR, Civil Appeal No. 7 of 1983
  • Bwana Mohamed Bwana vs Silvano Buko Bonaya & 2 others
    [2015] eKLR
  • Richard Ncharpi Leiyagu vs Independent Electoral and Boundaries Commission & 2 others
    [2013] eKLR
On appeal from
Employment and Labour Relations Court (ruling by Lady Justice J. Mulwa)
Jurisdiction invoked
Sections 3, 3A and 3B of the Appellate Jurisdiction Act and rules 42, 43, 45, 84 and 87(1) of the Court of Appeal Rules, 2010

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, "Teachers Service Commission v Kamau & 19 others (Civil Application E003 of 2021) [2023] KECA 990 (KLR)", Case Analysis (2023). Civil Application No. Nakuru 3 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/990/eng@2023-07-28

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