The Hon Attorney General v Musa Mbwagwa Mwanyasi & 8 others
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
#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
- 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)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "The Hon Attorney General v Musa Mbwagwa Mwanyasi & 8 others", 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.