Attorney General v Mwanyasi & 9 others (Civil Appeal (Application) E650 of 2021) [2026] KECA 1544 (KLR)
The bottom line
#Kenya's Court of Appeal refused to strike out an appeal filed without the judgment's decree, holding that missing paperwork alone cannot end a case.
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 record of appeal should be struck out for want of inclusion of mandatory documents, particularly the decree of the judgment appealed against and the applicants' written submissions in the High Court
- 2.Whether the supplementary record of appeal, filed out of time and without leave under Rule 88 of the Court of Appeal Rules 2010, should be struck out
Key legal issues
#Omission of the decree from the record of appeal
The omission of the decree, though a breach of the Rules, was explained as inadvertent and made to comply with timelines; it did not render the record fatally defective so as to justify striking out where no prejudice was shown.
The court found it undisputed that the record of appeal lacked the decree. The respondent explained the efforts to have the draft decree signed by the Deputy Registrar and that the record was filed to meet timelines. The decree was later issued, certified, and a supplementary affidavit filed in compliance with the Rules. The court treated the omission as an irregularity curable without striking out the entire appeal, absent demonstrated prejudice.
Filing of the supplementary record of appeal out of time and without leave
The respondent failed to follow Rule 88, which allowed a 15-day window without leave and thereafter leave of the Deputy Registrar; however, under Rule 94 (Rule 92 of the 2010 Rules) a supplementary record may be lodged, and in the circumstances no prejudice warranted striking out.
The court noted the respondent did not take advantage of either the 15-day window or the leave route, instead filing the supplementary record as of right. Due process required compliance, and the applicants could not be faulted for their application. Nevertheless, Rule 94 permitted a respondent to lodge a supplementary record with further documents required for the proper determination of the appeal, and since no prejudice was demonstrated, striking out was not warranted.
Legal principles established
#- An appellant who omits a document from the record of appeal may include it in a supplementary record of appeal within fifteen days without leave, and thereafter only with leave of the Deputy Registrar; failure to follow that due process is a procedural irregularity, but striking out is warranted only where prejudice is demonstrated.
Court orders
#- 1.The notice of motion dated 13th January 2022 is declined
- 2.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Jurisdiction invoked
- Rules 42, 84 and 87 of the Court of Appeal Rules, 2010 (now Rules 44, 86 and 89 of the Court of Appeal Rules, 2022)
Relief refused
#Striking out of the record of appeal dated 11th November 2021 for want of inclusion of the decree and the applicants' written submissions
No prejudice demonstrated to warrant striking out the appeal; omission was explained and a supplementary record was filed
Costs of the application borne by the appellant
The court declined to make any orders as to costs
Costs
We make no orders as to costs.
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.
The respondent did not take advantage of the two opportunities to file the omitted document/documents by seeking leave to do so. Instead, he filed the supplementary record of appeal just like any other document. Due process must be followed and the applicants cannot be faulted for filing the application dated 13th January 2022.
Whereas the appellant ought perhaps, for good order, to have sought leave under Rule 88. In the circumstances of this case no prejudice has been demonstrated to warrant the striking out of the appeal.
Consequently, the notice of motion dated 13th January 2022 is declined. We make no orders as to costs.
Issues in the judgment
#The judgment does not state the names of the parties or the case title of the underlying appeal; the parties are identified only by role (applicants/respondents and respondent/appellant) and by their counsel.
Counsel's written submissions are dated 19th March 2026 while the application was heard and determined later in 2026; the judgment also references submissions dated 9th June 2025 and 23rd May 2025, but the application itself is dated January 2022 and was set down for plenary hearing - the chronology of the hearing dates is not stated in the judgment.
The judgment states the application cited 'Rules 42, 84 and 87 of the Court of Rules, 2010' - an apparent typographical omission of 'Appeal' from the rules' title.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Attorney General v Mwanyasi & 9 others (Civil Appeal (Application) E650 of 2021) [2026] KECA 1544 (KLR)", Case Analysis (2026). Civil Appeal No. 650 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1544/eng@2026-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.