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Court of AppealPartially AllowedCivil Appeal (Application) No. 250 of 2000

Peter Njeru Mugo v Jimba Credit Corporation Ltd & another [2001] KECA 302 (KLR)

Court of Appeal
4 October 2001
ROR.S.C. OmoloALA.A. LakhaMKM. Keiwua
160 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an appeal because a single affidavit exhibit was missing from the record, showing procedural compliance is non-negotiable.

What this practically means

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Executive summary

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This is a short ruling of the Court of Appeal at Nairobi (Omolo, Lakha and Keiwua, JJ.A.) delivered on 4 October 2001 in Civil Appeal (Application) No. 250 of 2000. The application, brought under rule 80 of the Court of Appeal Rules, sought to strike out the appeal on the ground that an annexture to an affidavit - an exhibit - had been excluded from the record of appeal, in breach of the mandatory provisions of rule 85(1)(f) of the Rules. The court agreed with the application, holding that the omission was incurable, that it rendered the record of appeal defective, and that the appeal was therefore incompetent. The motion succeeded and the appeal was struck out with costs, including the costs of the motion. The ruling establishes, as a binding proposition for lower courts and litigants, that compliance with rule 85(1)(f) in compiling the record of appeal is mandatory, and that the exclusion of an exhibit or annexture from the record is an incurable defect which renders an appeal incompetent and liable to be struck out under rule 80. The judgment contains no separately authored opinions, no cited authorities, and no dissent; it is a single ruling of the full bench. No decision of a lower court was reviewed on the merits - the appeal was terminated on procedural grounds.

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 an annexture/exhibit of an affidavit from the record of appeal breached rule 85(1)(f) of the Court of Appeal Rules
  2. 2.Whether such omission is incurable and renders the record defective and the appeal incompetent, justifying striking out under rule 80

Key legal issues

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01

Whether exclusion of an exhibit/annexture from the record of appeal is a mandatory breach of rule 85(1)(f) warranting striking out

Holding

Yes - the omission is incurable, renders the record defective and the appeal incompetent, and the appeal is struck out with costs.

Reasoning

The respondents applied under rule 80 of the Court of Appeal Rules to strike out the appeal because an annexture to an affidavit, being an exhibit, was left out of the record of appeal. The court treated rule 85(1)(f) as mandatory, held the omission incurable, found the record defective and the appeal incompetent, and struck the appeal out with costs, including costs of the motion.

p. 2

Legal principles established

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  • A record of appeal that omits an annexture or exhibit of an affidavit, in breach of rule 85(1)(f) of the Court of Appeal Rules, is defective and the appeal is incompetent and liable to be struck out under rule 80.

Court orders

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  1. 1.The appeal is struck out
  2. 2.Costs of the appeal, including the costs of the motion, are awarded to the respondents

The bench

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

RO
majority
AL
majority
MK
majority
Jurisdiction invoked
Rule 80 of the Court of Appeal Rules (application to strike out an appeal)

Relief refused

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Continuation/prosecution of the appeal

The record of appeal was defective for breach of rule 85(1)(f), rendering the appeal incompetent

p. 2

Costs

The appeal is struck out with costs including the costs of the motion.

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.

The omission is incurable and renders the record defective and the appeal incompetent.
p. 2Effect of breach of rule 85(1)(f) on competence of appeal
Accordingly, the motion succeeds. The appeal is struck out with costs including the costs of the motion.
p. 2Final orders - striking out and costs

Issues in the judgment

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minor

The judgment is a very short ruling; it does not state which party moved under rule 80, though context indicates the respondents; no other internal contradictions found.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Peter Njeru Mugo v Jimba Credit Corporation Ltd & another [2001] KECA 302 (KLR)", Case Analysis (2001). Civil Appeal (Application) No. 250 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/302/eng@2001-10-04

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