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Court of AppealAllowedCivil Appeal (Appli.) 190 of 2006

Mohamed Aden Abdi v Abdi Nuru Omar, Ali Mohamed Haji T/A & Delta Haulage Services Ltd (Civil Appeal 190 of 2006) [2007] KECA 25 (KLR)

Court of Appeal of Kenya
30 November 2007
ROR.S.C. OmoloSBS.E.O. BosireWDW.S. Deverell
1,180 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an entire appeal because its record omitted key documents, and ordered the lawyer to personally pay costs for misleading the Court.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal at Kisumu (Omolo, Bosire and Deverell, JJA) in a motion by Mohamed Aden Abdi seeking to strike out the record of appeal in Civil Appeal No. 190 of 2006, an intended appeal from the judgment of Warsame, J. in H.C.C.C. No. 304 of 1999. The motion was brought under rules 42 and 85 of the Court of Appeal Rules, alleging the record omitted exhibits mandatorily required to be included. The Court held that the proviso to rule 85(1) must be read with rule 85(3), so that exclusion of documents is a matter for the superior court, not the appellant's discretion, and the respondents never sought such a direction. It further held that failure to cite rule 80, the usual provision for striking out an appeal, and failure to cite the appeal number in the prayers were not fatal, since the motion and affidavit made the relief sought unmistakable. However, on the timeliness point the Court verified the calendar and found counsel's claim that the last filing day (28th September 2006) fell on a weekend untruthful; the date was a Thursday, so the application lodged on 29th September was out of time without leave and incompetent. The Court struck out both the application and the appeal itself, the latter because counsel conceded the omitted exhibits were primary documents incurably uncorrectable. Notably, the Court ordered counsel, Mr. Otieno, to personally pay costs of Kshs. 5,000/- for misleading the Court, with no order as to costs on the appeal.

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 was incurably defective for non-inclusion of documentary exhibits produced at trial
  2. 2.Whether failure to cite rule 80 of the Court of Appeal Rules, the normal provision for striking out an appeal, fatally vitiates the application
  3. 3.Whether failure to cite the specific appeal number sought to be struck out was fatal to the application
  4. 4.Whether the application was filed out of time under the proviso to rule 80, given the claim that the last filing day fell on an excluded day

Key legal issues

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01

Inclusion of documentary exhibits in the record of appeal

Holding

Documentary exhibits are primary documents that must be included in the record of appeal; exclusion is not within the appellant's discretion, and any exclusion must be by direction of a judge or registrar under rule 85(3), which the respondents never sought.

Reasoning

Counsel for the respondents argued that the proviso to rule 85(1) allowed an appellant to omit exhibits he considered irrelevant. The Court rejected this: if the discretion lay with the appellant, rule 85(3) - which allows a judge or registrar, on application, to direct exclusions - would not have been promulgated. The proviso must therefore be read with rule 85(3), making exclusion a matter for the superior court.

p. 2
02

Consequences of non-inclusion of exhibits for the competence of the appeal

Holding

With counsel conceding the omitted documents were primary documents that could not be brought in by a supplementary record, the appeal was incompetent and could only be struck out.

Reasoning

Once the record of appeal is incurably defective for want of primary documentary evidence, the appeal is incompetent. Counsel's concession that a supplementary record could not cure the omission left no room for any other disposition, and the Court struck out the appeal itself with no order as to costs.

p. 3
03

Defective citation of provisions and appeal number

Holding

Failure to cite rule 80, and failure to cite the appeal number in the prayers, were not fatal where the motion and affidavit made the relief sought and the appeal in issue unmistakable.

Reasoning

The Court held that in an appropriate case it may strike out an application citing no appropriate provision, but here the prayers and supporting affidavit left no doubt that rule 80 relief was sought. Similarly, the respondents were clearly aware the application targeted Civil Appeal No. 190 of 2006, though citing the appeal in the prayers would have been more prudent.

p. 2
04

Filing out of time and the excluded-days rule

Holding

The application was filed out of time without leave and was therefore incompetent, since 28th September 2006 was a Thursday and not an excluded day, contrary to counsel's assertion.

Reasoning

Under the proviso to rule 80, an application to strike out an appeal must be made within 30 days of service of the record of appeal. The record was filed and served on 29th August 2006. Counsel claimed the last day, 28th September 2006, fell on a weekend so time extended under rule 3(b), but the Court checked the calendar and found he was untruthful - the date was a Thursday. The application lodged on 29th September was therefore out of time.

p. 2

Legal principles established

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  • The decision as to which documents or exhibits may be excluded from the record of appeal is a matter for the superior court under rule 85(3), not for the appellant's discretion, and the proviso to rule 85(1) must be read with rule 85(3).
  • A record of appeal that omits documentary exhibits, which are primary documents, is incompetent and liable to be struck out where a supplementary record cannot cure the omission.
  • Where the prayers in a motion and the supporting affidavit show the applicant was seeking relief under a rule not cited, the failure to cite that rule is not fatal to the application, though the Court may strike out such an application in an appropriate case.
  • Counsel who misleads the Court on material facts may be ordered to personally pay costs of the application as an expression of the Court's displeasure.

Court orders

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  1. 1.The application dated 4th September 2006 and lodged in court on 29th September 2006 is struck out
  2. 2.Mr. Otieno, counsel for the applicant, to personally pay the costs of the motion, assessed at Kshs. 5,000/-, for misleading the Court
  3. 3.The appeal (record of appeal) is struck out with no order as to its costs

The bench

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

RO
majority
SB
majority
WD
majority
On appeal from
High Court of Kenya at Kisumu
H.C.C.C. No. 304 of 1999
Jurisdiction invoked
Rules 42, 80 and 85 of the Court of Appeal Rules (application to strike out record of appeal in an intended appeal)

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.

Clearly the decision as to which documents are to be excluded is a matter for the superior court.
p. 2Rule 85(3) discretion on exclusion of documents from record of appeal
It is our view therefore that the proviso to rule 85(1) has to be read with rule 85 (3).
p. 2Harmonious reading of rule 85(1) proviso and rule 85(3)
That being the case, the application was filed out of time without leave and is therefore incompetent. It falls to be struck out and accordingly we order that the application dated 4th September, 2006 and lodged in court on 29th September, 2006 be and is hereby struck out.
p. 2Final orders striking out the application as out of time
We therefore, order the appeal to be and is hereby struck out with no order as to its costs. Orders accordingly.
p. 3Final orders striking out the appeal itself
we order Mr. Otieno to personally pay the costs of the motion which we assess at Kshs.5000/=.
p. 2Personal costs order against counsel for misleading the Court

Issues in the judgment

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minor

The judgment header describes Mohamed Aden Abdi as APPLICANT/RESPONDENT while the body calls him 'the respondent in Civil Appeal No. 190 of 2006'; the party labels are internally inconsistent in the record as reproduced.

minor

The judgment is headed 'RULING OF THE COURT' and styled as an application to strike out a record of appeal in an intended appeal; it is not a full appellate judgment disposing of the underlying High Court suit.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Mohamed Aden Abdi v Abdi Nuru Omar, Ali Mohamed Haji T/A & Delta Haulage Services Ltd (Civil Appeal 190 of 2006) [2007] KECA 25 (KLR)", Case Analysis (2007). Civil Appeal (Appli.) 190 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/25/eng@2007-11-30

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