Southern Credit Banking Corporation Ltd v Tulip Apartments Limited & 2 others [2003] KECA 86 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal because a key document missing from the appeal record made it fatally defective.
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 omission of the third respondent advocate's practising certificate from the record of appeal, being a matter very much in issue in the suit, breached rule 85(1)(f) of the Rules of this Court and rendered the appeal incompetent.
- 2.Whether leave to appeal was required for the appeal against the High Court ruling.
- 3.What costs order should follow where the appeal is struck out on a competency point not raised by the respondents.
Key legal issues
#Whether the omission of the third respondent advocate's practising certificate from the record of appeal rendered the appeal incompetent.
Yes. The certificate was a matter very much in issue in the suit and the judge below had referred to it as having been produced by consent; its omission from the record, which the appellant properly conceded, breached the mandatory provision of rule 85(1)(f) of the Rules of this Court and rendered the appeal incurably defective and incompetent.
Rule 85(1)(f) of the Rules of this Court prescribes the mandatory contents of the record of appeal. The appellant conceded that the practising certificate was absent, yet the certificate was central to the dispute - the judge below had recorded its production by consent. Because the rule is mandatory, non-compliance could not be excused or cured; the defect went to the competence of the appeal itself. An incurably defective appeal cannot be entertained on its merits, so the court struck it out without proceeding further.
Whether leave to appeal was required for the appeal against the High Court ruling.
The court found it unnecessary to decide. Once the appeal was held incompetent for breach of rule 85(1)(f), the leave question fell away and was left open.
The court sequenced the issues: the competency of the appeal was antecedent to any question of leave. Having found the record of appeal defective in a mandatory respect, the court held that no purpose would be served by examining whether leave to appeal was required, since an incompetent appeal could not proceed regardless of the answer. The point was therefore left undecided, and the disposition rested solely on the incurable procedural defect in the record.
What costs order should follow where an appeal is struck out on a competency point not raised by the respondents.
No order as to costs. Although the appeal was struck out, the court declined to award costs because the point of incompetence was not raised by the respondents.
While costs ordinarily follow the event, the court tempered that principle here: the striking out rested on a point the respondents had not taken. The court therefore struck out the incompetent appeal but made no order as to costs, sparing the respondents an award they had not sought. The order demonstrates that the discretion on costs may be exercised against the usual rule where the decisive point was not raised by the successful parties.
Legal principles established
#- Compliance with rule 85(1)(f) of the Court of Appeal Rules as to the contents of the record of appeal is mandatory; where a document that was very much in issue in the suit - such as an advocate's practising certificate - is omitted from the record, the omission renders the appeal incurably defective and incompetent.
- An appeal struck out as incompetent on a point not raised by the respondents may be struck out with no order as to costs.
Court orders
#- 1.The appeal, being incompetent, 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
- H.C.C.C No. 284 of 2002
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over a ruling of the High Court; the competency of the appeal was governed by rule 85(1)(f) of the Rules of this Court (Court of Appeal Rules), whose breach the court held rendered the appeal incompetent. The court expressly declined to determine whether leave to appeal was required.
Relief refused
#Determination of the appeal, including the antecedent question whether leave to appeal was required
The appeal was incurably defective and incompetent for breach of the mandatory rule 85(1)(f), so the court did not reach the leave question or the merits.
Costs of the appeal against the respondents
Although the appeal was struck out, the competency point had not been raised by the respondents, so the court declined to award costs.
Costs
No order as to costs - the appeal was struck out with no order as to costs because the point of incompetence was not raised by the respondents.
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.
Accordingly, the appeal being incompetent, is struck out but with no order as to costs as it was not raised by the respondents.
this omission is in breach of the mandatory provision of rules 85(1) (f) of the Rules of this Court and renders the appeal incurably defective and incompetent.
The record of appeal does not include the practising certificate of the advocate as is properly conceded although this was a matter which was very much in issue.
The learned judge refers to the production of this certificate in his judgment as having been produced by consent.
It is therefore not necessary to deal with the question whether leave to appeal was required or not.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Southern Credit Banking Corporation Ltd v Tulip Apartments Limited & 2 others [2003] KECA 86 (KLR)", Case Analysis (2003). Civil Appeal No. 173 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2003/86/eng@2003-01-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.