Nicholas Mulaya v Joel Kisia & another [2001] KECA 190 (KLR)
The bottom line
#Kenya's Court of Appeal threw out an appeal because the case file was incomplete and partly unreadable, leaving the original High Court judgment standing.
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 13 of the Rules of the Court notwithstanding that several pages were illegible
- 2.Whether the omission from the record of appeal of the application and supporting affidavit for the amendment of a pleading, in breach of rule 85(1)(c) of the Rules, rendered the appeal incompetent
- 3.What orders, including as to costs, should follow from the established breaches of the Rules of the Court
Key legal issues
#Whether a record of appeal containing illegible pages complies with rule 13 of the Rules of the Court.
It does not. Counsel for the appellant conceded, and the court endorsed the concession as rightly made, that several pages of the record of appeal were illegible in breach of rule 13. The court nonetheless did not strike out the appeal on this ground alone, treating it as secondary to the more serious omission under rule 85(1)(c).
The court recorded Mr Otieno's concession that several pages of the record of appeal were illegible and endorsed it as rightly made, thereby confirming that rule 13 demands a legible record. However, the court expressly moved to what it called the more important defect: the absence from the record of the application and supporting affidavit for the amendment of a pleading. The legibility breach therefore informed the court's assessment of the record but was not the operative ground for striking out the appeal; the fatal defect was the incurable rule 85(1)(c) omission.
Whether the omission from the record of appeal of the application and supporting affidavit for the amendment of a pleading, in breach of rule 85(1)(c) of the Rules, renders the appeal incompetent.
Yes. The court held the omission incurable and fatal: it rendered the appeal incompetent, and the appeal was accordingly struck out without any hearing on the merits.
Rule 85(1)(c) requires the record of appeal to include the application and supporting affidavit for the amendment of a pleading. Their absence was not a curable irregularity capable of amendment or of being overlooked: the court characterized it as incurable and as destroying the competence of the appeal. Because competence of the appeal is a precondition to the court entertaining it, no substantive adjudication followed. The sanction was striking out, tempered only by the refusal to award costs against the appellant.
What costs order follows where an appeal is struck out for incompetency attributable to the appellant's own record.
The court struck out the appeal but made no order as to costs, leaving each party to bear its own costs despite the appellant's procedural default.
Although striking out is the consequence of an incompetent appeal, the court did not penalize the appellant in costs. The disposition expressly provided that the appeal be struck out with no order as to costs. This reflects the practice of not awarding costs where an appeal is extinguished on a competency point without adjudication of the merits, though the ruling gives no reasons for declining costs.
Legal principles established
#- A record of appeal that omits the application and supporting affidavit for the amendment of a pleading required by rule 85(1)(c) of the Court of Appeal Rules suffers an incurable defect which renders the appeal incompetent, and such an appeal will be struck out.
- Pages of a record of appeal must be legible; illegible pages are in breach of rule 13 of the Rules of the Court.
Court orders
#- 1.The appeal is struck out.
- 2.No order as to costs (each party to bear its own costs).
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kakamega
- KAK.H.C.C.C. No. 178 of 1991
- Jurisdiction invoked
- Not stated in the ruling. The matter was before the Court of Appeal as an appeal from the High Court of Kenya at Kakamega; no constitutional or statutory provision conferring jurisdiction is cited in the judgment.
Relief refused
#Hearing and determination of the appeal on the merits
The record of appeal omitted the application and supporting affidavit for the amendment of a pleading required by rule 85(1)(c); the omission was incurable and rendered the appeal incompetent, so the appeal was struck out without any adjudication of the merits.
Costs
No order as to costs - the appeal was struck out 'but with no order as to costs', leaving each party to bear its own 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.
This omission is incurable and renders the appeal incompetent.
It is accordingly struck out but with no order as to costs.
the record does not include the application or supporting affidavit for the amendment of a pleading in breach of rule 85 (1)(c) of the rules
several pages in his record of appeal are not legible in breach of rule 13 of the Rules of the Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nicholas Mulaya v Joel Kisia & another [2001] KECA 190 (KLR)", Case Analysis (2001). Civil Appeal No. 90 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/190/eng@2001-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.