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Court of AppealStruck OutNot stated in the judgment

IPA LABORATORIES LIMITED vs NATURE PHARMACY LIMITED [1999] KECA 97 (KLR)

Court of Appeal of Kenya
30 November 1999
RKR.O. KwachPhilip Kiptoo TunoiP.K. TunoiALA.A. Lakha
114 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an appeal because the record of appeal left out a key court document, showing completeness is mandatory.

What this practically means

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Executive summary

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This is a short ruling of a three-judge bench of the Court of Appeal at Nairobi (Kwach, Tunoi and Lakha, JJA) delivered on 30 November 1999 in an appeal by Ipa Laboratories Limited against Nature Pharmacy Limited. The court identified a single, undisputed defect: the record of appeal did not include the defence to the counterclaim, a pleading that was admitted on the record. That omission breached rule 85(1)(c) of the Court of Appeal Rules, which the court characterised as mandatory. Because the missing pleading was part of the pleadings that the rule requires the record to contain, the defect went to the root of the record and could not be cured; the court described the record as incurably defective and incompetent. On that basis, and without any need to hear the appeal on its merits, the court struck out the appeal as incompetent and awarded costs. The ruling binds lower courts and litigants as an affirmation that strict compliance with rule 85(1)(c) in compiling the record of appeal is mandatory, and that a record omitting an admitted pleading is incurably defective and liable to be struck out. The judgment contains no separate opinions, no cited authorities, and no decision below was reviewed on the merits; the appeal was disposed of on a procedural competency ground alone.

Questions the Court framed

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

  1. 1.Whether an appeal record that omits an admitted pleading (the defence to the counterclaim), in breach of rule 85(1)(c) of the Court's Rules, is competent

Key legal issues

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01

Competency of a record of appeal omitting an admitted pleading

Holding

Omission of the defence to the counterclaim from the record breaches rule 85(1)(c), a mandatory provision, and the defect is incurable; the appeal must be struck out

Reasoning

The court treated rule 85(1)(c) as mandatory in requiring the record to include the pleadings. The defence to the counterclaim was an admitted pleading yet absent from the record. Because the breach went to the completeness of the record itself, the defect could not be cured, and the only available course was to strike out the appeal as incompetent, with costs to the respondent.

p. 2

Legal principles established

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  • A record of appeal that omits an admitted pleading, in breach of rule 85(1)(c) of the Court of Appeal Rules, is incurably defective and incompetent and will be struck out

Court orders

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  1. 1.The appeal is struck out as incompetent
  2. 2.Costs of the appeal awarded to the respondent

The bench

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

RK
majority
Philip Kiptoo Tunoi
majority
AL
majority
Jurisdiction invoked
Rules of this Court, rule 85(1)(c) (as invoked in the ruling); no constitutional or statutory provision expressly cited

Relief refused

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Prosecution of the appeal on the defective record

The record omitted the defence to the counterclaim, breaching the mandatory rule on the contents of the record of appeal, rendering it incurably defective

p. 2

Costs

The appeal was struck out with costs (to the respondent)

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 not in dispute that the defence to the counterclaim (which is an admitted pleading) is not included in the record in breach of mandatory provisions of rule 85(1)(c) of the Rules of this Court.
p. 2Mandatory content of the record of appeal
This renders the record incurably defective and incompetent. Accordingly, the appeal is struck out as incompetent with costs.
p. 2Final orders - striking out for defective record

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "IPA LABORATORIES LIMITED vs NATURE PHARMACY LIMITED [1999] KECA 97 (KLR)", Case Analysis (1999). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/97/eng@1999-11-30

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