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Supreme CourtStruck OutPetition 41 of 2019

Kenya Revenue Authority & 2 others v Mount Kenya Bottlers Ltd & 4 others

Supreme Court of Kenya
26 November 2021
1,447 words in judgment
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AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Supreme Court struck out Kenya Breweries' appeal for lacking specific reliefs and missing court documents.

What this practically means

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Kenya Breweries and another party appealed to the Supreme Court against a Court of Appeal tax decision. The Supreme Court first checked if the appeal papers were properly filed. It found two fatal problems: the appeal did not ask for any specific legal remedy, only general principles; and the record of appeal was missing key documents from the High Court. Despite being given time to fix this, the company failed. The Court struck out the entire appeal and ordered Kenya Breweries to pay costs to the respondents.

Executive summary

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This was a petition of appeal from the Court of Appeal's judgment in Civil Appeal No 164 of 2013, which had overturned a High Court decision. Before hearing the substantive appeal, the Supreme Court raised two preliminary issues: whether the petition contained any reliefs sought, and whether the record of appeal was complete. The court found that paragraph 14 of the petition only sought pronouncements on constitutional principles of taxation under Articles 201 and 210 of the Constitution, without any actual legally recognized reliefs, violating Rule 9(1)(d) of the Supreme Court Rules, 2012. Additionally, the record of appeal was incomplete as it omitted the High Court petition and part of the supporting affidavit, despite prior opportunities and a court order to file a supplementary record. The court held that both defects were fatal and incurable, as the window for compliance had closed. The court also strongly criticized counsel for the petitioners for attempting to proceed without disclosing the missing documents, finding this conduct fell short of professional etiquette. Consequently, the Supreme Court struck out the petition in its entirety and awarded costs to the 1st to 4th respondents, with no costs to the 5th respondent who had not meaningfully participated.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the petition of appeal contained reliefs or prayers sought
  2. 2.Whether the record of appeal was incomplete

Key legal issues

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01

Whether the petition of appeal contained reliefs sought as required by Rule 9(1)(d) of the Supreme Court Rules, 2012

Holding

The petition did not contain any actual legally recognized reliefs; paragraph 14 only sought pronouncements on principles of taxation, not specific reliefs, making the petition fatally defective.

Reasoning

The court examined paragraph 14 of the petition, which merely asked for pronouncements on constitutional principles of taxation under Articles 201 and 210, without seeking any specific order or remedy. Rule 9(1)(d) requires the petition to contain 'the relief sought'. The court held that this omission was fatal and could not be cured by amendment at that stage, as the petition was fundamentally defective from the outset.

02

Whether the record of appeal was incomplete and whether that defect was curable

Holding

The record of appeal was incomplete as it omitted the High Court petition and part of the supporting affidavit; despite prior opportunities and a court order to file a supplementary record, the defect was not cured, and the window for compliance had closed.

Reasoning

The court noted that the matter had been mentioned several times before the Deputy Registrar for the petitioners to file a supplementary record of appeal. A consent order dated 5th October 2020 directed filing within 14 days, but the supplementary record filed on 19th October 2020 only contained the Court of Appeal order and proceedings, not the missing High Court documents. The court found this failure fatal under Rule 33(4) of the Supreme Court Rules, 2012, as the time for compliance had passed.

03

Whether counsel's conduct in concealing the missing documents amounted to professional misconduct

Holding

Counsel's attempt to proceed without informing the court or opposing parties that essential documents were missing fell short of professional etiquette and was improper, dishonest, and discourteous.

Reasoning

The court observed that counsel for the petitioners knew essential documents were missing but still intended to proceed without disclosure. The court strongly condemned this behavior, stating it was an attempt to mislead the court and fell short of the professional conduct expected of an advocate and officer of the court.

Legal principles established

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  • A Supreme Court petition must clearly state the specific relief or order sought, not just legal principles.
  • The record of appeal must include all pleadings and documents from the lower courts; missing documents are fatal.
  • Failure to comply with Supreme Court Rules within the allowed time cannot be cured later.
  • Counsel must disclose missing documents to the court and opposing parties; concealing them is improper and dishonest.
  • A petition that fails to meet procedural requirements will be struck out without a hearing on the merits.

Court orders

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  1. 1.The petition herein is hereby struck out
  2. 2.The 1st to 4th respondent shall have the costs of the appeal
  3. 3.The 5th respondent is not entitled to any costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority

Wrote the judgment

majority
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal at Nairobi
Civil Appeal No 164 of 2013
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

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Prayer to allow amendment of the petition

The petition was fatally defective and incurable; the window for compliance was closed

Prayer to be given one day to furnish missing documents

The defect was not cured despite prior opportunities; the window for compliance is now closed

Costs

The 1st to 4th respondent shall have the costs of the appeal. The 5th respondent did not participate in the proceedings in any meaningful way, and therefore is not entitled to any.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is clear to us, from the above excerpt of the appellant’s petition, that there were no actual legally recognized reliefs pleaded by the petitioners for the court to grant, and taking the relevant rules into consideration, we do find that the petition of appeal before us is fatally defective for lack of reliefs sought and ought to be struck out
p. 4 Defective petition for lack of reliefs
We find that the petitioners were obligated by law to include all the pleadings and documents relied upon during the hearing in the two superior courts. Failure to comply with section 33(4) of the then Supreme Court Rules, 2012 is fatal as the window for such compliance is now closed
p. 5 Incomplete record of appeal
This apparent attempt by Counsel to mislead the court, in our considered view falls short of professional etiquette and conduct, that is expected from an Advocate and officer of the court. It is improper, dishonest, and discourteous for an advocate to deliberately conceal material facts that are important to arriving at a just and fair decision
p. 5 Professional misconduct by counsel
The petition herein is hereby struck out.
p. 5 Final order striking out petition
As costs follow the event, the 1st to 4th respondent shall have the costs of the appeal. The 5th respondent did not participate in the proceedings in any meaningful way, and therefore is not entitled to any.
p. 5 Costs order

Key timeline

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Before 2013
High Court heard a tax dispute involving Kenya Breweries and others.
2013
Court of Appeal overturned the High Court decision in Civil Appeal No 164 of 2013.
5 October 2020
Consent order gave Kenya Breweries 14 days to file a supplementary record of appeal.
19 October 2020
Supplementary record filed, but still missing the High Court petition and part of supporting affidavit.
Judgment date not specified
Supreme Court struck out the petition for lack of reliefs and incomplete record, with costs.

Practical implications

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For lawyers

Draft precise reliefs in Supreme Court petitions

When drafting a petition of appeal to the Supreme Court, ensure you include specific, legally recognized reliefs (e.g., an order to set aside, vary, or remit). Merely asking for pronouncements on legal principles is insufficient. Also, verify that the record of appeal contains every document from the High Court and Court of Appeal. Failure is fatal and cannot be cured after the compliance window closes.

For businesses

Ensure your legal team files complete appeals

If your company is involved in a Supreme Court appeal, instruct your lawyers to double-check that the petition clearly states what you want the court to order (e.g., overturn a decision) and that all lower court documents are included. Missing these steps can lead to the entire appeal being thrown out, wasting time and money, and you may be ordered to pay the other side's costs.

For individuals

Know that procedural mistakes can end your appeal

If you are a party to a case that reaches the Supreme Court, the court will strictly enforce procedural rules. Your appeal must ask for a specific remedy (like reversing a decision) and include all documents from earlier courts. Even if you have a strong case, failing these technical requirements means your appeal can be struck out without ever being heard on its merits.

Frequently asked questions

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Why was Kenya Breweries' Supreme Court appeal struck out in Kenya?+

The Supreme Court struck out the appeal because the petition did not ask for any specific legal relief—it only sought general pronouncements on tax principles. Also, the record of appeal was missing key documents from the High Court. Both defects were fatal and could not be fixed after the deadline.

What happens if a Supreme Court petition in Kenya lacks reliefs?+

Under Rule 9(1)(d) of the Supreme Court Rules, a petition must state the relief sought. If it only asks for legal principles without a specific order (like setting aside a judgment), the petition is fatally defective and will be struck out. The court will not allow amendments after the filing window closes.

Can I fix an incomplete record of appeal in the Kenyan Supreme Court?+

You may be given a chance to file a supplementary record, but only within the time allowed by the court or rules. In this case, Kenya Breweries was given 14 days but still failed to include all required documents. Once the window closes, the defect becomes incurable and the appeal will be struck out.

What is professional misconduct for a lawyer in a Kenyan Supreme Court case?+

The Supreme Court held that a lawyer who knows essential documents are missing from the record but proceeds without informing the court or opposing parties is acting improperly, dishonestly, and discourteously. This falls short of professional etiquette expected of an advocate and officer of the court.

Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Revenue Authority & 2 others v Mount Kenya Bottlers Ltd & 4 others", Case Analysis (2021). Petition 41 of 2019. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2021/26/eng@2021-11-26

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