Green Power Generation Company Limited v Kenya Power and Lighting Company Limited & another (Civil Appeal (Application) E006 of 2024) [2025] KECA 760 (KLR)
The bottom line
#Kenya's Court of Appeal refused to strike out an appeal merely because the decree in the record was uncertified, calling it a curable procedural technicality.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 1st respondent's Memorandum and Record of Appeal should be struck out on the ground that the decree annexed is an uncertified copy contrary to sections 2, 68, 79, 80 and 81 of the Evidence Act and the Court of Appeal Rules
- 2.Whether the Record of Appeal was filed out of time without leave (ground abandoned at hearing)
- 3.Whether Mpeketoni Electricity Project (MEP) ought to have been joined and served as a party directly affected by the appeal (ground abandoned at hearing)
Key legal issues
#Whether an appeal should be struck out for inclusion of an uncertified decree in the record of appeal
No. Where the decree was properly signed, sealed and dated by the Deputy Registrar, discloses no variance with the judgment, and does not handicap the appellate court, want of certification is a mere procedural technicality inconsistent with Article 159(2)(d).
The Court reiterated that procedural rules are handmaidens of justice and invoked Article 159(2)(d) of the Constitution requiring justice to be administered without undue regard to procedural technicalities. It adopted its earlier decision in Peter Obwogo O vs H O, noting no discrepancy between the judgment and the decree and no contention that the Court would be handicapped in determining the appeal. Counsel's reliance on Ngige Ngugi vs Njenga Waweru was not adopted; the respondent answered that it had been overtaken by the constitutional dictates of substantive justice.
The scope of the discretion to strike out an appeal under Rule 86 of the Court of Appeal Rules
The Court has discretion to strike out a Notice of Appeal or an appeal where an essential step has been omitted or not taken within prescribed time, but the discretion must be exercised judiciously in each case.
The Court framed Rule 86 as conferring a discretion rather than mandating striking out. Read with Article 159(2)(d), the discretion is to be exercised judiciously, weighing whether the omission obstructs substantial justice. On the facts, the only surviving complaint was certification of the decree, which did not impede the efficacious determination of the appeal, so the discretion was properly withheld and the striking-out motion dismissed.
Legal principles established
#- The absence of certification of a copy of the decree in a record of appeal, where the decree conforms with the judgment and is properly signed and sealed, is a procedural technicality that does not warrant striking out the appeal
- The Court's discretion under Rule 86 of the Court of Appeal Rules to strike out a Notice of Appeal or appeal must be exercised judiciously, guided by Article 159(2)(d) of the Constitution
Court orders
#- 1.The Notice of Motion dated 20th February 2024 is dismissed
- 2.Costs of the application awarded to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- Jurisdiction invoked
- Inherent application jurisdiction under rules 3 and 86 of the Court of Appeal Rules (application to strike out a record of appeal), read with sections 2, 68(2)(c), 79, 80 and 81 of the Evidence Act and Order 50 Rule 4 of the Civil Procedure Rules as invoked by the applicant
Relief refused
#Striking out of the Memorandum and entire Record of Appeal for want of a certified decree
Want of certification of the decree, which was otherwise properly signed and sealed, is a procedural technicality that does not impede determination of the appeal
Striking out the appeal for failure to join and serve MEP, and for filing the Record of Appeal out of time
The applicant abandoned those grounds at the hearing, confining itself to grounds 1 and 10 on the uncertified decree
Costs
The Notice of Motion was dismissed with costs to the 1st respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Notwithstanding that the decree was not certified as a true copy of the original, the complaint of want of certification is a procedural technicality that ought not to come in the way of determination of the substantive appeal.
Article 159(2) (d) of the Constitution, prescribes that '…justice shall be administered without undue regard to procedural technicalities.'
Under Rule 86 of this Court's rules, the Court has discretion to strike out a Notice of Appeal or appeal where an essential step has been omitted during filing, or has not been taken within the time prescribed. This discretion should nevertheless be exercised judiciously in each case.
Accordingly, the Notice of Motion dated 20th February 2024 is without merit and is hereby dismissed with costs to the 1st respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Green Power Generation Company Limited v Kenya Power and Lighting Company Limited & another (Civil Appeal (Application) E006 of 2024) [2025] KECA 760 (KLR)", Case Analysis (2025). Malindi Court of Appeal Civil Application (Motion) dated 20th February 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/760/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.