Dorcas Wangari Macharia v Terry Wacheke Muigai & Agnes Wambui Muigai
The bottom line
#Kenya's Court of Appeal struck out an entire appeal because the notice of appeal cited a ruling date that never existed — and such notices cannot be corrected.
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 should be struck out for failure to include the answer to the petition and exhibits in the record of appeal
- 2.Whether illegible exhibits and underlined submissions in the record offend rule 13 of the Court of Appeal Rules and warrant striking out
- 3.Whether the appeal is competent given that the notice of appeal refers to a ruling delivered on 25th October 1999, a non-existent ruling
Key legal issues
#Effect of omissions from the record of appeal
Omission of a pleading from the service copy, and inclusion of illegible exhibits, do not justify striking out the appeal; a supplementary record under rule 89 is the remedy.
The answer to the petition was in all copies of the record except counsel's service copy, which could be obtained from the appellant. Illegible photographs and documents could be cured by filing legible copies with leave under rule 89. Underlining of submissions, though imprudent, is not a ground for striking out. These defects are curable and do not go to competency.
Competency of the appeal given a defective notice of appeal
The notice of appeal referred to a ruling of 25th October 1999 which does not exist; as a primary document incapable of amendment, the defect is incurable and the appeal must be struck out.
The notice of appeal confers jurisdiction on the Court. It cited a ruling dated 25th October 1999, yet the record shows a ruling of 24th October 1995 and the judge's notes indicate 26th October 1995. Since a notice of appeal cannot be amended, the three dates cannot be reconciled, and the appeal itself, not merely the record, must be struck out.
Legal principles established
#- Non-inclusion of a pleading in the service copy of the record of appeal does not justify striking out an appeal where all other copies contain it.
- Inclusion of illegible copies of exhibits does not warrant striking out a record of appeal; the remedy is a supplementary record under rule 89.
- A notice of appeal is a primary document that cannot be amended; a notice referring to a non-existent ruling is defective and fatal to the appeal.
Court orders
#- 1.The appeal, Civil Appeal No. 46 of 1999, is struck out
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Succession Cause No. 590 of 1985
- Jurisdiction invoked
- Notice of appeal under the Court of Appeal Rules (rules 80 and 42 invoked for striking out); jurisdiction founded on the notice of appeal
Relief refused
#Adjournment sought by appellant's counsel to check the superior court record to confirm the exact date of the ruling
The three conflicting dates could not be reconciled to cure the defect in the notice of appeal; an adjournment would be futile
Costs
No order as to costs - each party to bear their own costs, because the striking out resulted from a point raised by the Court itself and not by the first 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.
Noninclusion of a pleading in the service copy of the record does not qualify for striking out of an appeal when all other copies of the record contain the same.
A notice of appeal is a primary document. It cannot be amended.
In these circumstances we have no alternative but to strike out the appeal itself, and we so order.
As the striking out of the appeal comes as a result of the point raised by this Court, and not by the first respondent, we make no order as to costs.
Issues in the judgment
#Coram spells the first respondent's name 'Macharia' side caption 'Muigai' but the body uses 'Mungai'
Typographical errors in the judgment, e.g. 'Nariobi Hospital' for Nairobi Hospital
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dorcas Wangari Macharia v Terry Wacheke Muigai & Agnes Wambui Muigai", Case Analysis (2000). Civil Appeal No. 46 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/418/eng@2000-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.