Kemfro Africa Ltd t/a “Meru Express Services (1976)” & another v Lubia & another (Civil Appeal 34 of 1982) [1983] KECA 61 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether non-compliance with Rule 85(1)(f) in omitting documentary exhibits from the record of appeal mandates striking out the appeal
- 2.Whether an omission attributable to oversight constitutes 'sufficient reason' for extension of time to perfect the record
- 3.Whether a preliminary objection to strike out an appeal may be taken informally without notice
Key legal issues
#Effect of omitting exhibits from the record of appeal
The appeal must be struck out under Rule 80 where Rule 85(1)(f) is not complied with, even if some of the omitted exhibits may not be essential.
Rule 85(1)(f) is mandatory and requires the exhibits before the High Court to be included in the record. The court noted at least two categories of the omitted exhibits were necessary to determine the appeal against the award to Olive Lubia. Failure to take an essential step within the prescribed time triggers striking out under Rule 80, which is distinct from dismissal. The court did not need to decide whether the oversight amounted to sufficient reason for extension.
Whether a supplementary record can cure omission of a basic document
It cannot; a supplementary record is only for additional documents, not basic documents omitted in the first instance.
Following Kiboro v Posts and Telecommunications Corporation and Commercial Bank of Africa v General Motors Kenya Ltd, the court held that allowing a supplementary record to include basic documents would distort the purpose of supplementary records, which are confined to further or additional documents the appellant considers necessary. In Commercial Bank of Africa, even an oversight in omitting the plaint was not 'sufficient reason' for extension of time, and the appeal was struck out.
Formal notice requirement for striking-out application
An application to strike out may be made informally; form may affect costs only.
The appellants argued they should have had proper notice of the objection and time to prepare. The court found nothing in Rule 80 or Rule 42 preventing an informal application, particularly where the appeal is incompetent, though the court may in a proper case insist on a motion. Citing Raniga v Jivraj via Spry, informality may be taken into account when ordering costs.
Legal principles established
#- The provisions of Rule 85(1)(f) requiring exhibits to be included in the record of appeal are mandatory, and non-compliance results in the appeal being struck out under Rule 80.
- Striking out for non-compliance is not the same as dismissing the appeal.
- A preliminary objection to strike out may be raised informally, though the form used may be a factor in costs.
Court orders
#- 1.The appeal be struck out
- 2.Costs of the appeal to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Court of Appeal Rules, Rules 80, 85(1)(f), 42, 44, 89
Relief refused
#Adjournment to remedy the defective record / file a supplementary record
A basic document omitted from the record cannot be cured by a supplementary record, and Rule 85(1)(f) is mandatory
Costs
This appeal be struck out with costs to the respondents.
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 mandatory terms of Rule 85 (1) (f) have not been complied with and that the appeal must be struck out under rule 80, on the ground that an essential step has not been taken within the prescribed time
the omission of a basic document in the record cannot be cured by the filing of a supplementary record
This is not of course, the same as dismissing an appeal
In this case it is ordered that this appeal be struck out with costs to the respondents.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kemfro Africa Ltd t/a “Meru Express Services (1976)” & another v Lubia & another (Civil Appeal 34 of 1982) [1983] KECA 61 (KLR)", Case Analysis (1983). Civil Appeal (Nairobi), 1983. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1983/61/eng@1983-10-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.