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Court of AppealDismissedCivil Appeal (Application) No. 161 of 1999

Abok James Odera T/A A.J. Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates

Court of Appeal
30 June 2000
Philip Kiptoo TunoiP.K. TunoiASA.B. ShahSBS.E.O. Bosire
1,811 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to strike out an appeal over missing documents, ruling only core pleadings and party exhibits are essential.

What this practically means

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Executive summary

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The respondent, plaintiff in HCCC No. 183 of 1998 seeking Kshs 23,681,581.35 in professional fees, moved the Court of Appeal under rule 80 to strike out the appellant's appeal on two grounds: omission of essential pleadings and proceedings (those of HCCC No. 518 of 1996) from the record of appeal, and defects in the notice of appeal. An earlier appeal (Civil Appeal No. 176 of 1998) challenging the same ruling had already been struck out for similar reasons. The Court held that only documents in the primary categories under rule 85(1)(c) and (f), whose omission renders an appeal incurably defective, were at issue; the pleadings of the other suit were not primary in this appeal because the grounds of appeal were confined to the summary judgment order and the appellant had excluded his complaint about the dismissed Chamber Summons. The Court also held that a file called for and perused by the trial judge suo motu is not an exhibit 'put in evidence' by parties under rule 85(1)(f), rejecting the respondent's contrary submission. Omission of rule 85(1)(k) documents is a curable defect, and it would be harsh to strike out an appeal on that ground where the appellant may regularise it. The notice of appeal's defects - signature on behalf of the defendant and a clerical misdescription - did not mislead and were not fatal, distinguishing Pattni where errors were fundamental. The application was dismissed with no order as to costs.

Questions the Court framed

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

  1. 1.Whether the omission of pleadings and proceedings of HCCC No. 518 of 1996 from the record of appeal renders the appeal incurably defective and incompetent under rule 85 of the Court of Appeal Rules
  2. 2.Whether documents called for and perused by the trial judge suo motu fall under rule 85(1)(f) as exhibits
  3. 3.Whether omission of documents falling under rule 85(1)(k) justifies striking out the appeal
  4. 4.Whether the defects in the notice of appeal (signed on behalf of the defendant; misdescribed wording) are fatal

Key legal issues

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01

Classification of omitted documents under rule 85(1)

Holding

Pleadings of HCCC No. 518 of 1996, a separate suit, were not primary documents in this appeal; at best they were 'such other documents' under rule 85(1)(k)

Reasoning

The appeal arose from HCCC No. 183 of 1998 and the grounds of appeal were confined to the summary judgment order. Because the appellant excluded his complaint against the order dismissing his Chamber Summons, the pleadings of the other suit could not be primary documents under paragraphs (c) or (f).

p. 3
02

Whether suo motu perused court files are exhibits under rule 85(1)(f)

Holding

No - rule 85(1)(f) covers only documents put in evidence by the parties

Reasoning

The respondent argued that Order 13 of the Civil Procedure Rules empowered the court to call for files, making them exhibits. The Court rejected this, holding the paragraph envisages exhibits put in by parties; the documents were neither relied upon nor produced by either party.

p. 3
03

Defects in the notice of appeal

Holding

The defects - signature on behalf of the defendant and clerical wording - were not fatal because they did not mislead

Reasoning

The appellant is the defendant in the suit, so signing on behalf of the defendant did not mislead. The phrase 'intended to serve this appeal' instead of 'this notice on' was clerical. Distinguished Pattni, where errors were fundamental and misleading.

p. 3

Legal principles established

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  • Only omission of documents in the primary categories under rule 85(1)(c) and (f) renders an appeal incurably defective; omission of rule 85(1)(k) documents is a curable defect
  • Documents called for and perused by a trial judge suo motu are not exhibits 'put in evidence' by parties under rule 85(1)(f)
  • A defect in a notice of appeal that does not mislead is not fatal
  • It is harsh to strike out an appeal for omission of non-primary documents where the appellant may regularise the defect under rule 85(2A)

Court orders

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  1. 1.The application to strike out the appeal is dismissed
  2. 2.No order as to costs

The bench

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

Philip Kiptoo Tunoi
majority
AS
majority
SB
majority
On appeal from
High Court of Kenya at Nairobi
HCCC No. 183 of 1998
Jurisdiction invoked
Rule 80 of the Court of Appeal Rules (application to strike out an appeal)

Relief refused

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Striking out the appeal under rule 80 of the Court of Appeal Rules

The omitted documents were not primary documents; defects in the notice of appeal were curable and not misleading

p. 3

Costs

No order as to costs - each party to bear their own costs

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.

Of all the above categories of documents only those falling in paragraphs (c) and (f) are in the primary category the omission from the record of appeal of which will render an appeal incurably defective and incompetent.
p. 2Rule 85(1) - primary documents
Rule 85(1)(f) as worded envisages exhibits put in by the parties to a suit.
p. 3Exhibits under rule 85(1)(f)
In the result and for the foregoing reasons, the application fails and is dismissed but we make no order as to costs.
p. 3Final orders - dismissal of striking-out application
The errors in that case were of a fundamental nature and were misleading unlike those in our case which do not mislead and which, in our view, are curable.
p. 3Curable vs fatal defects in notices of appeal

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Abok James Odera T/A A.J. Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates", Case Analysis (2000). Civil Appeal (Application) No. 161 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/431/eng@2000-06-30

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