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Court of AppealStruck OutCivil Appeal No. 170 of 2000

Murunga t/a Splinter Tours & Travel v JN Wafubwa t/a Red Impex General Services (Civil Appeal 170 of 2000) [2001] KECA 312 (KLR)

Court of Appeal of Kenya
8 February 2001
159 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an appeal because the filed record was illegible, showing sloppy paperwork can sink a case before it is even heard.

What this practically means

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Executive summary

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This brief records a short ruling of the Court of Appeal at Nairobi delivered on 8 February 2001 by Akiwumi, Owuor and Keiwua, JJ.A., in Civil Appeal No. 170 of 2000. The appellant, Paul Murunga trading as Splinter Tours & Travel, had appealed against Capt. J. N. Wafubwa trading as Red Impex General Services from the decree of the High Court at Nairobi (Mbogholi J) dated 24 March 1999 in H.C.C.C. No. 1321 of 1994. The Court of Appeal did not reach the merits of that appeal. On examining the record, it found that the record of appeal was illegible in many of its pages and that this infringed Rule 13(2) of the Court of Appeal Rules, which governs the preparation of the record of appeal. For that reason the court struck out the appeal, but it granted the appellant liberty to take the necessary corrective steps, so the striking out was not a final termination: a compliant record could be filed and the appeal pursued. The respondent received the costs of that day only. The High Court decree was neither affirmed, varied nor reversed; the appeal was never heard on the merits, so the decision below was not disturbed. The binding takeaway is procedural: a record of appeal must be legible, and an illegible record is a defect that will cause the appeal to be struck out, with corrective liberty and costs of the day following the default. The ruling is a single unanimous judgment of the three-judge bench; no separate opinions were written and no authorities were cited.

Questions the Court framed

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

  1. 1.Whether the record of appeal, being illegible in many of its pages, complies with Rule 13(2) of the Court of Appeal Rules.
  2. 2.What consequence follows for an appeal founded on a record that infringes Rule 13(2).

Key legal issues

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01

Whether an appeal founded on a record of appeal that is illegible in many of its pages complies with Rule 13(2) of the Court of Appeal Rules, and what consequence follows.

Holding

An illegible record of appeal infringes Rule 13(2); the appeal founded on it is struck out, with liberty to the appellant to take corrective steps and with the costs of the day awarded to the respondent.

Reasoning

The Court of Appeal Rules prescribe the form and contents of the record of appeal, and Rule 13(2) in particular demands legible documents. A record illegible in many pages cannot enable the court or the respondent to follow the appeal, so the defect goes to the root of the appeal as filed. The court treated the non-compliance as a ground for striking out rather than dismissing the appeal on the merits, preserving the appellant's position through liberty to take corrective steps, and compensated the respondent with the costs of the day. The merits of the appeal were never reached.

p. 2

Legal principles established

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  • A record of appeal that is illegible in many of its pages infringes Rule 13(2) of the Court of Appeal Rules and will cause the appeal to be struck out, ordinarily with liberty to the appellant to take corrective steps.

Court orders

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  1. 1.The appeal struck out, with liberty to the appellant to take necessary corrective steps.
  2. 2.Costs of the day (8th February 2001) awarded to the respondent.

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 1321 of 1994
Jurisdiction invoked
Not expressly stated in the ruling; the only provision invoked is Rule 13(2) of the Court of Appeal Rules ('our Rules'), under which the illegible record of appeal was struck out.

Relief refused

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Leave to have the appeal proceed on the record of appeal as filed

The record was illegible in many of its pages, infringing Rule 13(2) of the Court of Appeal Rules.

p. 2

Costs

The respondent will have his costs for today.

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 record of appeal filed in this matter is in many of its pages, quite illegible thus infringing Rule 13(2) of our Rules.
p. 2Illegible record of appeal - infringement of Rule 13(2) of the Court of Appeal Rules
For this reason, the appeal is struck with liberty for the appellant to take necessary corrective steps. The respondent will have his costs for today.
p. 2Final orders - appeal struck out with liberty to correct and costs of the day to the respondent

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, "Murunga t/a Splinter Tours & Travel v JN Wafubwa t/a Red Impex General Services (Civil Appeal 170 of 2000) [2001] KECA 312 (KLR)", Case Analysis (2001). Civil Appeal No. 170 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/312/eng@2001-02-08

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