Commercial Bank of Africa Ltd v General Motors Kenya Ltd [1982] KECA 39 (KLR)
The bottom line
#The Court of Appeal struck out an appeal because the filed record of appeal was missing the plaint, and a later supplementary record could not fix the defect.
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 appeal was competent where the Record of Appeal as lodged omitted a copy of the pleadings (the plaint) required by rule 85(1)(c) of the Court of Appeal Rules
- 2.Whether a supplementary record of appeal lodged under rule 89(3) after lodgment could cure that omission
- 3.Whether the appellant should be granted an extension under rule 4 on the ground of counsel's oversight
Key legal issues
#Whether a supplementary record of appeal under rule 89(3) can cure the omission of a mandatory component of the record under rule 85(1)
No. Rule 89(3) exists to obviate delay and lack of knowledge of appellate contentions, not to permit an appellant to supply, at any time, documents that were compulsory components of the record at lodgment. Compliance with rule 85 is a condition precedent to the propriety of the record at lodgment.
The court reasoned that rule 85 mandatorily prescribes the contents of a record of appeal, certified as correct at lodgment, and that allowing an appellant to supply compulsory components 'at any time' under rule 89(3) would create an incoherent conflict between the rules. Rule 89(3) is designed to obviate a respondent's lack of knowledge of appellate contentions, not to heal a defect in the original record. The point was settled in Kiboro, where a supplementary memorandum could not heal a breach of rule 85(1)(h).
Whether a plaint is part of the pleadings for purposes of rule 85(1)(c)
Yes. The plaint is a part of the pleadings and its omission from the record of appeal is a breach of rule 85(1)(c).
The appellant's advocate argued the plaint was neither part of the pleadings nor a necessary document for the appeal. The court rejected this, holding that rule 85(1)(c) requires the record to contain a copy of the pleadings in the suit, namely the plaint. Its absence rendered the lodged record defective, and the defect was not cured by the later supplementary record, which was also lodged outside the sixty-day period prescribed by rule 81(1).
Whether counsel's oversight constitutes sufficient reason for an extension under rule 4
No. Oversight by an advocate does not normally constitute sufficient reason, and the court will not depart from established precedent on this point.
Counsel candidly admitted the omission of the plaint was due to his oversight, and made an oral application under rule 4 only on the hearing date, having earlier maintained that the supplementary record cured the defect. The court held that accepting oversight as sufficient reason would depart radically from numerous decisions of the Court and its predecessor, and that the construction of the mandatory rules was paramount to the exercise of discretion.
Legal principles established
#- Compliance with the mandatory content requirements of rule 85(1) is a condition precedent to the propriety of a record of appeal at lodgment; a supplementary record under rule 89(3) cannot cure the omission of a mandatory component of the record.
- An irregularity arising from failure to comply with a mandatory rule, including an omission due to an advocate's oversight, cannot be cured by filing a supplementary record of appeal.
- Oversight by an advocate does not normally constitute sufficient reason for extension of time under rule 4.
Court orders
#- 1.The appeal is struck out as incompetent
- 2.Costs of the appeal to the objecting respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Held that compliance with rule 85(1) is a condition precedent to the propriety of a record of appeal at lodgment; a supplementary record under rule 89(3) cannot cure the omission of pleadings from the original record, and counsel's oversight was not sufficient reason for extension under rule 4.
I am firmly of the opinion that compliance with the requirements of rule 85 constitutes a condition precedent to the propriety of the record of appeal at lodgment.p. 2
Wrote the judgment
Agreed the appeal was incompetent: the plaint was part of the pleadings required by rule 85(1)(c), the supplementary record could not cure the defect, and oversight by counsel is not a sufficient reason under rule 4 consistent with prior decisions.
The right of an appellant under rule 89(3) to lodge at any time a supplementary record is a right to file “further documents or any additional parts of documents which are … required for the proper determination of the appeal” and is not a right to lodge at any time documents which should have been lodged within the stipulated time as part of the Record of Appeal.p. 3
Wrote the judgment
Agreed with the conclusions of Miller and Potter JJA; observed that an advocate's oversight does not normally constitute sufficient reason, though the court retains a power under rule 4, and that the omission cannot be cured by a supplementary record where the rule is mandatory.
The failure to comply, due to an oversight on the part of an advocate, with the Rules of Court, in particular when the rule in question is of a mandatory nature as rule 85(1) in this case, the irregularity cannot be cured by filing a supplementary record, but, notwithstanding that oversight on the part of an advocate does not normally constitute sufficient reason, the court has the power to allow it to be done under rule 4.p. 3
- On appeal from
- High Court of Kenya, Nairobi
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal under its Rules (appeal lodged in the Court's Registry on September 4, 1981)
Relief refused
#Application under rule 4 for extension of time to lodge a complete record of appeal
Counsel's oversight in omitting the plaint was not a sufficient reason, and to accept it would depart radically from established decisions on what constitutes sufficient reason.
Unconditional leave to defend the suit (the substantive relief sought on appeal against the conditional order setting aside summary judgment)
The appeal itself was incompetent and was struck out, so the substantive relief was never determined.
Costs
The appeal is struck out as incompetent, with costs to the respondent (the objecting 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.
I am firmly of the opinion that compliance with the requirements of rule 85 constitutes a condition precedent to the propriety of the record of appeal at lodgment.
The right of an appellant under rule 89(3) to lodge at any time a supplementary record is a right to file “further documents or any additional parts of documents which are … required for the proper determination of the appeal” and is not a right to lodge at any time documents which should have been lodged within the stipulated time as part of the Record of Appeal.
I do not accept the submission of Mr Kwach, who appeared for the appellant, that the plaint was not a part of the pleadings for the purposes of rule 85(1)(c) or a necessary document for the purposes of this appeal.
The failure to comply, due to an oversight on the part of an advocate, with the Rules of Court, in particular when the rule in question is of a mandatory nature as rule 85(1) in this case, the irregularity cannot be cured by filing a supplementary record,
The appeal is ordered to be struck out as incompetent, with costs.
Issues in the judgment
#The judgment does not state the appeal number in its registry particulars, so the case number cannot be recorded.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Commercial Bank of Africa Ltd v General Motors Kenya Ltd [1982] KECA 39 (KLR)", Case Analysis (1982). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1982/39/eng@1982-01-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.