Samuel Mwehia Gitau v Elijah Kipn’geno Arap Bii & another [2006] KECA 207 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal because the record omitted the original plaint and defence, confirming these documents are mandatory.
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 is incompetent for omission of the original plaint and original statement of defence and counter-claim
- 2.Whether the application to strike out was incompetent for having been filed after the expiry of thirty days from service of the record of appeal, notwithstanding the single judge's extension of time
Key legal issues
#Whether omission of original pleadings from a record of appeal renders the appeal incompetent
Yes. Rule 85(1)(c) mandatorily requires the original plaint and original defence and counter-claim to be incorporated in the record of appeal for an appeal from a superior court, notwithstanding subsequent amendment of the pleadings.
The court relied on its own prior decision, Delphis Bank Limited v Caneland Limited, which held that rule 85 specifies the contents of a record of appeal and that sub-rule (1)(c) mandates inclusion of the original pleadings even where amended. Amendment does not extinguish the original pleading; it remains on the record. The respondent's unilateral decision to exclude the documents was wrong since exclusion is only permissible by order of a judge or registrar under rule 85(3), which was not invoked.
Whether the striking-out application was barred by the proviso to rule 80 requiring filing within thirty days of service of the record
No. The single judge had granted an extension of time under rule 4 for filing the striking-out application, and the reference in his ruling to 15th April, 2005 was an obvious slip; the substantive relief sought and granted was an extension of time to file the striking-out application.
There was only one application, dated 7th April, 2005 and filed on 15th April, 2005, which did not itself seek striking out, so no extension could sensibly have been limited to that date for such an application. The applicant filed the striking-out motion three days after the ruling, in accordance with the clear finding and grant of the extension. The court adopted a reasonable construction of the slip and overruled the objection.
Legal principles established
#- Rule 85(1)(c) of the Court of Appeal Rules is mandatory; a record of appeal from a superior court must contain the original plaint and original defence and counter-claim even where amended pleadings exist, failing which the appeal is incompetent and liable to be struck out.
- Amendment does not extinguish the original pleadings; they remain on the record, and their exclusion from a record of appeal can only be effected by an order of a judge or registrar under rule 85(3).
- A court will take a reasonable view of an obvious slip in a single judge's ruling on extension of time rather than allow the slip to defeat the substance of the order granted.
Court orders
#- 1.The notice of appeal dated 23rd September, 2004 and the record of appeal filed on 12th November, 2004 in Civil Appeal No. 255 of 2004 be and are hereby struck out
- 2.The costs of the application and of the struck out appeal shall be borne by the 1st respondent, Elijah Kipn'geno arap Bii
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. 882 of 2003
- Jurisdiction invoked
- Rule 80 and rule 85(1)(c) of the Court of Appeal Rules; rule 4 (extension of time)
Relief refused
#Respondent's submission that original pleadings could be introduced in a supplementary record
Counsel abandoned this contention and conceded the application
Costs
The costs of the application and of the struck out appeal shall be borne by the 1st respondent, Elijah Kipn'geno arap Bii.
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.
We think that this is a mandatory rule and failure to comply with it would render any appeal incurably defective and the same is liable to be struck out as incompetent.
The only way such documents may be excluded is by an order of a judge or registrar under rule 85 (3) of the rules of this Court, which in this case was not invoked.
It was purely an unfortunate but obvious slip in the ruling and we must take a reasonable view of it.
In the result we grant the application and order that the notice of appeal dated 23rd September, 2004 and the record of appeal filed on 12th November, 2004 in Civil Appeal No. 255 of 2004 be and are hereby struck out.
Issues in the judgment
#The judgment inconsistently records the date of filing of the striking-out application, referring to 22nd July, 2005 in describing the objection but later to the applicant filing 'three days after the ruling' of 22nd July, 2005 and to 25th July, 2005 in counsel's submission.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Mwehia Gitau v Elijah Kipn’geno Arap Bii & another [2006] KECA 207 (KLR)", Case Analysis (2006). Civil Application No. 255 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/207/eng@2006-06-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.