Salome Nduta Maara v George J. Maara

3. At page 48 of the Record, the proceedings of 7 th December 2022 show that the trial court granted the Defendant leave to file affidavits and documents in support of the Preliminary Objection. The Defendant filed a Supporting Affidavit dated 14th December 2022, annexing among other things the Plaintiff's application dated 4 th March 2021 and her Further Affidavit dated 15th July 2021 in Limuru CMCC No. 281 of 2020 (annexure "GM1"). 4. The Respondent avers that the said affidavit, together with the affidavit filed in response on 27th January 2023 (referred to at page 49 of the Record), was omitted from the Record of Appeal. The trial court relied on these documents in its ruling and their omission offends the mandatory requirement of Order 42 Rule 13(4)(e). 5. Further, he avers that during the pendency of this appeal, the Appellant instituted proceedings over the same subject matter, by an application dated 14th September 2023 in Nairobi High Court Succession Cause No. E2563 of 2021 (Estate of George Mbugua Maara). By a ruling dated 26th June 2025, that court held the application to be sub judice this appeal (annexures "GM2" and "GM3"). 6. On 25th August 2025, the Directorate of Criminal Investigations closed its investigation into the Appellant's complaint concerning L.R. No. Limuru/Ngecha/893 and returned the Respondent's documents (annexure "GM4"). The deceased, George Mbugua Maara, lived, died and was buried in Nakuru, and litigation must come to an end. THIKA ELCLA NO. E019 OF 2023 (RULING) Page 2

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7. The Appellant opposed the application through her Replying Affidavit sworn on 3rd October 2025. She deposes that the Record of Appeal was filed on 6th May 2024 and contains the Memorandum of Appeal, the Notice of Preliminary Objection dated 8th June 2022, the parties' written submissions, the trial court proceedings, the impugned Ruling and a certified copy of the resulting order. 8. The Appellant avers that with leave granted on 3 rd June 2024, she filed a Supplementary Record of Appeal dated 12th September 2024 to include a certified copy of the trial court's order. The Record was served on the Respondent's advocates by email on 6 th May 2024, and the Supplementary Record on 13th September 2024 (annexure "SNM 1"). That email address is one the Respondent's advocates have used to acknowledge service in this matter (annexure "SNM 2"). Physical copies were also served on 17th April 2025 (annexure "SNM 3"). 9. The matter came up for directions on 23rd January 2025 and 29th May 2025. On neither date did the Respondent raise any complaint about the Record before taking directions on written submissions, which both parties have since filed. She avers that the only document omitted is the six-paragraph Supporting Affidavit dated 14th December 2022, which was inadvertently left out. The other matters at paragraphs 10, 12 and 14 of the Supporting Affidavit have no nexus to the appeal. 10. The appeal is against a ruling on a preliminary objection, which turns on points of law. The omission is therefore not fatal and she is THIKA ELCLA NO. E019 OF 2023 (RULING) Page 3

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amenable to filing a supplementary record of appeal containing the affidavit. She avers that The application is an afterthought meant to defeat the appeal on a technicality, contrary to Article 159(2)(d) of the Constitution. 11. The application was canvassed by way of written submissions. The Respondent/Applicant filed submissions dated 17 th November 2025, and the Appellant filed submissions dated 1st December 2025. 12. I have considered the application, the affidavits on both sides, the annexures and the submissions with the authorities cited. The single issue for determination is whether the Record of Appeal is incomplete and, if so, whether the omission renders the appeal incompetent and liable to be struck out Analysis and Determination 13. Order 42 Rule 13(4) of the Civil Procedure Rules requires the judge, before allowing an appeal to go for hearing, to be satisfied that certain documents are on the court record. These are: (a) the memorandum of appeal; (b) the pleadings; (c) the notes of the trial magistrate made at the hearing; (d) the transcript of any official shorthand, typist notes, electronic recording or palantypist notes made at the hearing; (e) all affidavits, maps and other documents whatsoever put in evidence before the magistrate; and (f) the judgment, order or decree appealed from and, where appropriate, the order giving leave to appeal. THIKA ELCLA NO. E019 OF 2023 (RULING) Page 4

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14. The proviso to the sub-rule, however, empowers the judge to dispense with the production of any document or part of a document which is not relevant, other than those specified in paragraphs (a), (b) and (f). Only those three categories are therefore indispensable. The documents in issue here fall under paragraph (e). 15. It is not disputed that the Record contains the Memorandum of Appeal, the Notice of Preliminary Objection, the proceedings and submissions before the trial court, the Ruling of 9 th August 2023, and a certified copy of the resulting order. The core documents under paragraphs (a) and (f) are on record. 16. The Appellant concedes that the Respondent's Supporting Affidavit sworn on 14th December 2022, with its annexures, was omitted. The Record itself (page 49) also refers to a further affidavit filed in response on 27th January 2023, which the Respondent says is equally missing. The Appellant has not addressed that second document, and I take it as also omitted. I note that the Appellant's reliance on paragraphs 10, 12 and 14 of the Respondent's affidavit misreads the complaint: those paragraphs concern the sub judice and DCI grounds, not the omitted documents. 17. I do not accept the Appellant's suggestion that, because the appeal arises from a preliminary objection, the omitted affidavits are immaterial. The proceedings of 7th December 2022 show that the trial court granted leave for affidavits to be filed in support of the objection. THIKA ELCLA NO. E019 OF 2023 (RULING) Page 5

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The affidavit of 14th December 2022 annexed the sale agreement and the pleadings in Limuru CMCC No. 281 of 2020, which bear directly on the objection. These are documents put in evidence before the magistrate within the meaning of Order 42 Rule 13(4)(e), and this Court will need them to assess whether the trial court properly decided the objection. The Record is therefore incomplete. 18. The real question is whether that defect is fatal. In my view it is not. The omitted documents are not among those the proviso makes indispensable. A defect of this kind is curable and the Court has the means to cure it by directing a supplementary record. As this Court observed in Kipkoech & 4 Others v Cheruiyot [2025] KEELC 154 (KLR), an omitted document may render a record of appeal defective without rendering it incurably defective. 19. The authorities cited by the Respondent do not compel a different result. Bwana Mohamed Bwana v Silvano Buko Bonaya & 2 Others concerned the Supreme Court's own rules and the failure to file the requisite record in an election appeal bound by strict timelines. Here, a record exists; what is missing are two affidavits that can be readily supplied. The statement in Raila Odinga v IEBC that Article 159(2)(d) does not oust the obligation to comply with procedure is undoubtedly sound. But that principle is satisfied by requiring the Appellant to comply now, not by shutting her out of the seat of justice altogether. THIKA ELCLA NO. E019 OF 2023 (RULING) Page 6

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20. The Supreme Court in Standard Chartered Financial Services Ltd v Manchester Outfitters (Suiting Division) Ltd & 2 Others, Petition (Application) No. E012 of 2024, held that an existing application for striking out does not in itself bar a litigant from rectifying an anomaly that has come to its attention. That court ultimately declined leave because it found the omitted documents not vital. 21. Here I have found the opposite and the case for allowing rectification is correspondingly stronger. The Court of Appeal took the same course in Doris M. Wanjiru Kinuthia & 2 Others v Purity Ndirangu, Civil Appeal (Application) No. 94 of 2014, directing the filing of a supplementary record rather than striking out the appeal. 22. The conduct of both parties is also relevant. The Appellant bears primary responsibility for compiling a complete record and has offered no real explanation for the omission beyond inadvertence. On the other hand, the Respondent was served with the Record on 6th May 2024 and the Supplementary Record on 13th September 2024. He took directions on 23rd January 2025 and 29th May 2025 without complaint and filed his submissions on the appeal on 15 th September 2025, the same week this application was lodged. Although no rule bars him from raising the point now, the timing weighs against the drastic remedy of striking out. 23. Striking out is a draconian remedy, to be reserved for cases where the defect cannot be cured without injustice. The Respondent has not shown any prejudice that cannot be remedied by the inclusion of the THIKA ELCLA NO. E019 OF 2023 (RULING) Page 7

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two affidavits and an opportunity to address them. Sections 1A and 1B of the Civil Procedure Act and Article 159(2)(d) of the Constitution direct the Court to determine disputes justly and on their merits. The proper order is to allow the Appellant to file a supplementary record, not to strike out the appeal. 24. a. Accordingly, I make the following orders: The Respondent's Notice of Motion dated 11 th September 2025 is hereby dismissed; b. The Appellant is granted leave to file and serve, within fourteen (14) days of today, a Further Supplementary Record of Appeal containing: i. the Respondent's (then Defendant's) Supporting Affidavit sworn on 14th December 2022 in Limuru ELC Case No. E020 of 2022, together with all its annexures; ii. the affidavit filed in response on 27th January 2023 in the same matter; and iii. any other affidavit or document filed pursuant to the leave granted by the trial court on 7th December 2022. c. Upon service, the Respondent is at liberty to file and serve supplementary submissions, limited to the documents in order (b), within fourteen (14) days. The Appellant is granted concurrent leave to file Further submissions if need be, within seven (7) days of service. THIKA ELCLA NO. E019 OF 2023 (RULING) Page 8

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d. In default of compliance with order (b), the Respondent shall be at liberty to move the Court appropriately. e. Each party shall bear its own costs of the application. Dated, signed and delivered, virtually at Malindi this 7 th day of October 2026 …………….………….. J. M. ONYANGO JUDGE In the presence of: 1.Mr. Masinde for the Appellant 2. No appearance for the Respondent Court Assistant: Happy THIKA ELCLA NO. E019 OF 2023 (RULING) Page 9

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