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Court of AppealDismissedCivil Appeal (Appli) 111 of 2005

EDWARD MAINA NJANGA T/A MAINA NJANGA & CO. ADVOCATES v NATIONAL BANK OF KENYA LTD [2006] KECA 155 (KLR)

Court of Appeal of Kenya
27 July 2006
ROR.S.C. OmoloSBS.E.O. BosireWDW.S. Deverell
378 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that an appeal record only needs a certified copy of an order — technical flaws in how the order was drawn up won't kill an appeal.

What this practically means

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Executive summary

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This interlocutory ruling of the Court of Appeal at Mombasa, delivered by a bench of Omolo, Bosire and Deverell JJA, determined a notice of motion by the National Bank of Kenya Ltd seeking to strike out the record of appeal filed by Edward Maina Njanga, an advocate, from a ruling of Maraga J of the High Court at Mombasa dated 4th April 2005 in H.C.Misc. A. No. 583 of 2003. The bank argued that the Deputy Registrar who approved the certified order included in the record did not comply with Order 20 Rule 7 of the Civil Procedure Rules in drawing it up. The court held that Rule 85(1)(h) of the Court of Appeal Rules requires only that the record contain a certified copy of the order; it does not require that the order have been drawn up in accordance with Order 20 Rule 7. The drawing up of an order in the superior court is not an essential step in the appeal process, unlike filing the notice of appeal within time or filing an appeal without a certified copy of the order. Any complaint about the manner in which the order was drawn up must be raised in the superior court itself. The court dismissed the strike-out motion. On costs, although the applicant would normally bear costs, the court made no order as to costs because the respondent conceded it had failed to comply with the process of drawing up an order. The underlying appeal proceeds; the High Court ruling itself was not disturbed by this application.

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 should be struck out for non-compliance with Order 20 Rule 7 of the Civil Procedure Rules in the drawing up of the certified order
  2. 2.Whether the drawing up of an order in the superior court is an essential step in the process of an appeal under Rule 85(1)(h)

Key legal issues

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01

Whether failure to draw up the certified order in accordance with Order 20 Rule 7 of the Civil Procedure Rules justifies striking out an appeal under Rule 85(1)(h)

Holding

No. Rule 85(1)(h) requires only a certified copy of the order in the record; the drawing up of an order is not an essential step in the appeal process, and any defect in the drawing up is a matter for the superior court itself.

Reasoning

The court found no valid reason for striking out the appeal. The order in the record was certified and drawn, signed and certified by a Deputy Registrar. Even if the Deputy Registrar failed to comply with Order 20 Rule 7, the proper forum for that complaint is the superior court which drew up the order. The court contrasted genuinely essential steps, such as filing a notice of appeal within time or filing an appeal without a certified copy of the order, with the drawing up of the order, which it held not to be essential.

p. 1

Legal principles established

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  • Rule 85(1)(h) requires only that the record contain a certified copy of the order; the certified order need not have been drawn up in accordance with Order 20 Rule 7 of the Civil Procedure Rules, and the drawing up of an order is not an essential step in the appeal process
  • A complaint that an order was improperly drawn up by a Deputy Registrar should be raised in the superior court which drew up the order, not by a strike-out application in the Court of Appeal

Court orders

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  1. 1.The notice of motion dated 31st May 2005 and lodged in Court on 2nd June 2005 seeking to strike out the record of appeal be and is hereby dismissed
  2. 2.No order as to the costs of the application

The bench

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

RO
majority

Wrote the judgment

SB
majority

Wrote the judgment

WD
majority

Wrote the judgment

On appeal from
High Court of Kenya at Mombasa
H.C.MISC. A. No. 583 of 2003
Jurisdiction invoked
Appeal from the High Court under the Court of Appeal's appellate jurisdiction; strike-out application under Rule 85(1)(h) of the Court of Appeal Rules (as argued).

Relief refused

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Striking out the record of appeal

All Rule 85(1)(h) requires is a certified copy of the order; the drawing up of the order is not an essential step in the appeal and any complaint about its drawing up lies in the superior court

p. 1

Costs

No order as to costs of the application; the respondent agreed they failed to comply with the process of drawing up an order

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.

All that Rule 85(l)(h) requires is that there be in the record a certified copy of the order; it (Rule) does not say that the certified order must have been drawn up in accordance with Order 20 Rule 7.
p. 1Requirements of Rule 85(1)(h) for records of appeal
The drawing up of an order in the superior court is really not an essential step in the process of appeal; an essential step in the process of an appeal would be, for example, failure to file the notice of appeal within time or filing an appeal without a certified copy of the order.
p. 1Essential steps in the appeal process
We accordingly refuse to strike out the appeal and order that the notice of motion dated 31st May 2005 and lodged in Court on 2nd June 2005, be and is hereby dismissed
p. 1Final orders - dismissal of the strike-out application

Issues in the judgment

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minor

The rule of the Court of Appeal Rules is rendered inconsistently in the judgment as 'Rule 85(l)(h)' (letter 'l' in place of numeral '1') in one passage while the appeal heading context indicates Rule 85(1)(h)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "EDWARD MAINA NJANGA T/A MAINA NJANGA & CO. ADVOCATES v NATIONAL BANK OF KENYA LTD [2006] KECA 155 (KLR)", Case Analysis (2006). Civil Appeal (Appli) 111 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/155/eng@2006-07-27

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