Yashvin Shretta v Vadag Establishment & 10 others [2000] KECA 272 (KLR)
The bottom line
#Kenya's Court of Appeal refused to strike out an appeal, confirming that minor defects in appeal documents do not invalidate them if no one is prejudiced.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a notice of appeal that names only the parties' advocates, and not the parties themselves, complies with rule 74(3) of the Court of Appeal Rules and is competent.
- 2.Whether the omission from the record of appeal of the applicant's replying affidavit sworn on 16th June 1999 and of the two proposed consent letters dated 20th September 1999, alleged to be primary documents, renders the appeal incompetent under rules 85(1)(c), 85(1)(f) and 85(2A).
- 3.Whether the notice of appeal was required to be served on all persons directly affected by the appeal, including B.J. Kantaria, Zorba Limited, Patcham Holdings Limited and the creditor respondents.
- 4.Whether documents in the record of appeal that are illegible, underlined or upside down justify striking out the appeal.
- 5.Whether the notice of appeal is defective because it is lodged against a determination made in the course of implementing a consent order referring the dispute to arbitration.
- 6.Whether failure to arrange the pleadings and documents in the record of appeal in chronological order justifies striking out the appeal.
Key legal issues
#Whether a notice of appeal naming only the parties' advocates is competent under rule 74(3) of the Court of Appeal Rules
Competent. Service on an advocate on record is valid service; naming the parties themselves is prudent but not mandatory, and substantial compliance with Form D under rule 74(6) cures deviations not affecting substance.
Rule 17(1) permits service of a document on any person entitled under rule 22 to appear for a party, which includes an advocate; rule 17(2) allows one copy where an advocate acts for several parties. Section 72 of the Interpretation and General Provisions Act and Order III rule 3(1) of the Civil Procedure Rules treat service on a recognised agent as effectual as service on the party. The parties had given addresses for service care of their advocates, and rule 74(6) requires only substantial compliance with Form D, so a deviation not affecting substance does not void the notice.
Whether omission of an interlocutory replying affidavit from the record of appeal renders the appeal incompetent under rules 85(1)(c), 85(1)(f) and 85(2A)
It does not. Such an affidavit is neither a pleading nor an affidavit read or put in evidence at the hearing; it falls at best under rule 85(1)(k) and may be added by supplementary record under rules 89(1) or 85(2A).
'Pleading' is defined in section 2 of the Civil Procedure Act as including petitions and statements of claim and defence; an affidavit supporting an originating summons or winding-up petition may be a pleading, but a replying affidavit on an interlocutory application is not. The Shretta affidavit was aimed at resisting reference of the share valuation to arbitration while his intended appeal against Ole Keiwua J's ruling was pending; it was not read or put in evidence at the hearing before Mbaluto J, and falls at best under rule 85(1)(k).
Whether proposed consent letters addressed to the Deputy Registrar are primary documents whose omission invalidates the record of appeal
They are not. Letters addressed to the Deputy Registrar that were not proffered at the hearing are neither exhibits nor documents put in evidence, and are not primary or core documents.
The two letters of 20th September 1999 were addressed to the Deputy Registrar of the superior court and were not proffered at the hearing; they are therefore neither exhibits nor documents put in evidence under rule 85(1)(f). At best they qualify under rule 85(1)(k), and the applicant could have brought them in by a supplementary record under rule 89(1). The court expressly declined to classify them as primary or core documents, so their omission could not render the appeal incompetent.
Whether beneficiaries under a trustee and other persons claimed to be directly affected had to be separately served with the notice of appeal
No. Zorba and Patcham were before the court through Numised AG as trustee; Kantaria held Numised AG's power of attorney; the creditors, though served through their advocate, chose not to appear and fell away once the winding-up lost its purpose.
Order XXX rule 1 of the Civil Procedure Rules provides that in suits concerning property vested in a trustee the trustee represents the persons beneficially interested, and it is not ordinarily necessary to make them parties. The superior court did not order joinder and neither Zorba nor Patcham sought to appear through separate counsel; Halsbury's Laws of England (4th edn, Vol 37, para 243) is to the same effect. Kantaria held Numised AG's power of attorney, Prime Bank was served, and the creditors fell away once the winding-up lost its purpose.
Whether an appeal lies against a determination made in the course of implementing a consent order referring the dispute to arbitration
An appeal lies with leave of the superior court where, during arguments on the terms of a consent order, other matters crop up and are ruled on and are disputed; a party who raised no objection to the grant of leave is estopped from contending that no appeal lay.
The general rule is that a consent order cannot be appealed because it records a party agreement variable only by consent. But where, during arguments on the terms of a consent order, other matters crop up and are ruled on and disputed, the ruling is a court determination and an appeal lies with leave. Here counsel applied for and obtained leave on 3rd March 2000, Dr. Kamau Kuria raising no objection, so the applicant is estopped from contending that no appeal lay.
Whether illegible, underlined or non-chronological documents in a record of appeal justify striking out the appeal
They do not. Such defects are curable, cause no prejudice, and can be remedied by a supplementary record of appeal.
Defects of presentation - illegible documents, underlining reflecting documents as served, an upside-down page in a huge record, and non-chronological arrangement - are curable and cause no prejudice. Either party may lodge a supplementary record of appeal to supply any document needed for argument. The court found the record clearly comprehensible and capable of being argued without difficulty, and held such complaints do not qualify for striking out a record of appeal.
Legal principles established
#- A notice of appeal served on the parties' advocates on record is properly served; it is not invalid merely because the parties themselves are not named in it.
- A notice of appeal that substantially complies with Form D is not void for deviations that do not affect the substance of the document.
- An affidavit sworn in response to an interlocutory application is not a document read or put in evidence at the hearing under rule 85(1)(f); its omission from the record of appeal does not render the appeal incompetent, the remedy being a supplementary record.
- A trustee represents the beneficiaries of the trust in litigation; beneficiaries need not be separately named in, or served with, a notice of appeal where the trustee is before the court.
- No appeal lies against a consent order as such, but where disputes arise during arguments on the terms of a consent order and the court rules on them, an appeal lies with leave of the superior court.
- Illegibility, underlining, upside-down pages and non-chronological arrangement of a record of appeal do not justify striking out the appeal where no prejudice is caused.
- Where the purpose of winding-up proceedings has been overtaken, for instance by an order for purchase of a shareholder's shares by the majority shareholder, creditors cease to be parties directly affected by an appeal arising from those proceedings.
Court orders
#- 1.The application dated 26th May, 2000 is dismissed with costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Winding Cause No. 28 of 1996
- Jurisdiction invoked
- Rules 13, 76, 80 and 85 of the Court of Appeal Rules (notice of motion to strike out an appeal); the underlying appeal is against an order of the High Court (Mbaluto J) in H.C. Winding Cause No. 28 of 1996, leave to appeal having been granted by the superior court on 3rd March 2000.
Relief refused
#Striking out the appeal for omission from the record of appeal of the applicant's replying affidavit sworn 16th June 1999 and the two proposed consent letters dated 20th September 1999, alleged primary documents
The affidavit is not a pleading and was not read or put in evidence at the hearing; it falls at best under rule 85(1)(k), and the letters are not exhibits; the omissions are curable by a supplementary record under rules 89(1) or 85(2A).
Striking out the appeal because the notice of appeal names only the parties' advocates and not the parties themselves, contrary to rule 74(3)
Service on advocates on record is sufficient; non-naming of the parties is not fatal, and substantial compliance with Form D suffices.
Striking out the appeal for failure to serve the notice of appeal on persons directly affected, namely B.J. Kantaria, Zorba Limited, Patcham Holdings Limited, Numised AG, Willy Liens, Safe Rentals Limited and Mohansons Foods Limited
Zorba and Patcham are before the court through Numised AG as trustee; Kantaria holds Numised AG's power of attorney; the creditor respondents were served through their advocate and fall away once the winding-up loses its purpose.
Striking out the appeal because documents in the record are not clear and easily legible, contain underlining or an upside-down page
Such defects can be cured by a supplementary record and cause no prejudice; they do not qualify for striking out a record of appeal.
A declaration that the notice of appeal is defective as being lodged against a determination from which no appeal lies by virtue of a consent letter/consent order
An appeal lies with leave where disputes arise in the course of arguments on the terms of a consent order; leave was granted on 3rd March 2000 without objection from Dr. Kuria, estopping the applicant from contending otherwise.
Striking out the appeal because the pleadings and documents in the record of appeal are not arranged in chronological order
No prejudice is caused; the record is clearly comprehensible and the points of appeal can be argued without difficulty.
Costs
The application dated 26th May, 2000 is dismissed with costs.
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 upshot of all this is the application dated 26th May, 2000 is dismissed with costs.
It may be prudent to name the parties but a notice of appeal is not invalid by reason of non-naming of the parties when their advocates are named and served.
A notice of appeal which substantially complies with Form D cannot be void by reason of a deviation which does not affect the substance of the document
It is for these reasons that we think that the affidavit falls under rule 85(1)(k) of the Rules at best. It was not an affidavit read or put in evidence at the hearing. Such being the case the appeal is not incompetent.
We do not classify these documents as primary or core documents and the objection by Dr. Kuria is not meritorious.
In these circumstances we are unable to say that Zorba & Patcham are not before this Court. They are here through Numised AG.
Normally there can be no appeal against a consent order but if during the course of arguments on the terms of a consent order other matters crop up or are ruled on and are disputed an appeal will lie with leave of the superior court.
Now that the winding-up proceedings before the superior court do not fall for the main purpose the same were intended for, there being now an order for purchase by the majority shareholder of the shares of Mr. Shretta, the creditors go out of the picture, in any event.
These complaints do not qualify for striking out of a record of appeal.
Issues in the judgment
#Date of the motion is inconsistent: the ruling opens by describing a notice of motion 'lodged on 29th May, 2000' but the disposition dismisses 'the application dated 26th May, 2000'.
The consent order recording the terms of reference to arbitration is dated 15th September, 1997 in one passage, but 15th September, 1999 in another (with the consent resolving to refer dated 14th September, 1998); the 1997 date sits awkwardly before Ole Keiwua J's ruling of 31st July 1998 directing the parties to agree reference terms.
The replying affidavit is said to have been sworn on 16th June, 1999 in the grounds and in the court's restatement, but is later described as filed on 16th July, 1999.
The caption names the second respondent 'NUMISED A.C.' while the body of the ruling consistently refers to 'Numised A.G.'
The applicant's given name is spelled 'YASHVIN' in the caption but 'Yashwin' in the body of the ruling.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Yashvin Shretta v Vadag Establishment & 10 others [2000] KECA 272 (KLR)", Case Analysis (2000). Civil Appeal (Application) No. 83 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/272/eng@2000-07-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.