United Finance Ltd v Kyambu (Civil Appeal 252 of 1999) [2000] KECA 346 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal because the record of appeal was incomplete and inaccurate, showing sloppy appeal records can end cases entirely.
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 record of appeal complied with rule 85(1)(h) of the Court of Appeal Rules as regards certification of the decree
- 2.Whether the notice of appeal was served outside the prescribed period, and if so whether that complaint was res judicata having been raised or capable of being raised in an earlier application
- 3.Whether errors, omissions and dis-similarities in the copies of proceedings rendered the record of appeal fatally defective
- 4.Whether the order of stay of execution pending appeal should be set aside
Key legal issues
#Certification of the decree under rule 85(1)(h)
The complaint that the decree was not certified lacks merit because a certificate appears on the second page of the copy of the decree, which is sufficient compliance.
The court examined the record and found a certificate on the second page of the copy of the decree. It clarified the scope of rule 85(1)(h): the rule requires a certified copy of the decree in the record, not certification of every page of a multi-page decree, though certifying each page is prudent. The decision in R. v. The Commissioner For Co-operative Societies was misapprehended by the applicant and did not assist him.
Service of the notice of appeal outside the prescribed period
This complaint was rejected because it should have been raised in the respondent's earlier striking-out application, which was dismissed with costs for want of merit.
The respondent had previously applied to strike out the appeal on the ground that the notice of appeal was filed out of time without leave, and that application was dismissed with costs. The court held that a party cannot re-litigate in a second application a matter that ought to have been raised in the first. The complaint about timeous service was therefore rejected on that basis.
Errors and omissions in the record of appeal
The record of appeal was incurably defective: the two competing copies of proceedings were dis-similar, the appellant's rule 85(5) certificate was perfunctorily appended, and the proceedings were incomplete and incomprehensible in parts, rendering the appeal incompetent.
Both copies of the proceedings were certified by the superior court, yet they differed in content in several places, and the original record was not transmitted to the court so the correct version could not be established. The appellant did not file a replying affidavit to rebut the respondent's allegations. The appellant's rule 85(5) certificate appeared perfunctory. Rectification could not be achieved through a supplementary record under rule 89(3) given rule 85(2A). The appeal was therefore struck out.
Legal principles established
#- It is not necessary for every page of a multi-page decree to be certified; what rule 85(1)(h) requires is that the record of appeal contain a certified copy of the decree.
- The certificate required under rule 85(5) confirms that the appellant has checked each page of the record of appeal against the superior court record and is satisfied it agrees with that record; a perfunctory certificate does not save a defective record.
- A record of appeal containing incomplete, unintelligible or erroneous proceedings is incurably defective and renders the appeal incompetent, warranting striking out.
- A party who could have raised a complaint in an earlier application cannot raise it in a subsequent one.
Court orders
#- 1.The appeal is struck out with costs
- 2.The applicant (respondent) is awarded the costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 3782 of 1992
- Jurisdiction invoked
- Court of Appeal Rules (rule 85(1)(h), 85(2A), 85(5), 89(3)) governing the competence of records of appeal
Relief refused
#Setting aside the order of stay of execution pending appeal
The court did not pronounce on this prayer separately; the striking out of the appeal rendered the application's principal relief moot in effect, and the only orders made were striking out and costs
Costs
The appeal is struck out with costs to the respondent; the respondent shall also have the costs of the application.
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.
It is not every page of the decree which needs certification, although it would be a prudent thing to do if the decree runs into more than one page.
Such a certificate in our view, is to confirm that the appellant has checked each page against the superior court record and is satisfied that it agrees with that record.
Such rectification may not be done through the filing of a supplementary record of appeal under rule 89(3) of the Court of Appeal Rules, in view of the provisions of rule 85(2A) of the rules.
In view of the foregoing there is merit in the applicant's application. The record of appeal is incurably defective and the appeal is thus rendered incompetent. It is ordered struck out with costs. The applicant shall also have the costs of the application.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Republic v Town Clerk & another Ex-Parte Muriithi Murage & 3 others [2017] KEELC 2029 (KLR)[2017] KEELC 2029 (KLR)21 Jul 2017followed
Cite this brief
#Cite this brief
Caselaw, "United Finance Ltd v Kyambu (Civil Appeal 252 of 1999) [2000] KECA 346 (KLR)", Case Analysis (2000). Civil Appeal No. 252 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/346/eng@2000-02-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.