Grace Wahu Njoroge v John Patrick Machira t/a Machira & Co. Advocates [2009] KECA 99 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal because the lawyer filed the record late and left key documents out of it.
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 filed on 3rd June 2008 was lodged out of time, the appellant being disentitled from relying on the proviso to rule 81(1) because her application for proceedings was not copied to the respondent's advocates
- 2.Whether the omission of primary documents (the further amended reply to further amended defence and defence to counter-claim and grounds of objection) from the record of appeal rendered it incurably defective
- 3.Whether the defect could be cured by an application for leave to file a supplementary record of appeal
Key legal issues
#Entitlement to the proviso to rule 81(1) on computation of time for lodging a record of appeal
The appellant could not rely on the proviso because her letter applying for the proceedings was neither copied to nor sent to the respondent's advocates, as required by rule 81(2); counsel for the appellant did not dispute this
The proviso to rule 81(1) excludes from the sixty-day period the time certified by the Registrar as required for preparing proceedings. Rule 81(2) conditions reliance on the proviso on the application for the copy being in writing and copied to the respondent. The appellant's letter of 12th May 2006 was not copied to the respondent's advocates, so the full sixty days expired before the record was lodged on 3rd June 2008, rendering the appeal incompetent.
Omission of pleadings from the record of appeal
The omission of the further amended reply to further amended defence and defence to counter-claim and the grounds of objection, being part of the pleadings, made the record of appeal incurably defective
Rule 85(1) prescribes the mandatory contents of a record of appeal, including the pleadings. The omitted documents were part of the pleadings in the superior court and ought to have been included. Rule 85(2)(A) does not permit the defect to be cured by filing a supplementary record of appeal, so the appellant's October 2009 application for leave could not salvage the record.
Legal principles established
#- An appellant may only rely on the proviso to rule 81(1) excluding the time taken to prepare proceedings if the application for the copy of proceedings was in writing and a copy of it was sent to the respondent
- Pleadings in the superior court must be included in the record of appeal under rule 85(1), and their omission is fatal to the appeal and cannot be cured by a supplementary record of appeal
Court orders
#- 1.The notice of motion to strike out the appeal is allowed and the appeal is struck out
- 2.Costs of the motion and of the appeal are awarded to the applicant
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. 3383 of 1995
- Jurisdiction invoked
- Appeal from the High Court under the Court of Appeal Rules; the application was expressed to be under rules 42, 80, 81 and 85 of the Court of Appeal Rules
Relief refused
#The appellant's application dated 7th October 2009 for leave to file a supplementary record of appeal
The omitted documents were part of the pleadings and could not be introduced by way of a supplementary record of appeal; rule 85(2)(A) does not allow it
Costs
The appeal was struck out with costs; the costs of the motion and the appeal were awarded to the applicant
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.
An appellant shall not be entitled to rely on the proviso to sub-rule 1 unless his application for such copy was in writing and a copy of it was sent to the respondent.
But these documents were part of the pleadings in the superior court and ought to have been included in the record of appeal as per rule 85(1) aforesaid. In our view, failure to include them in the record of appeal is fatal to the appeal
The upshot of all we have said is that we allow the notice of motion to strike out the appeal and the same is struck out with costs. We award the costs of the motion and the appeal to the applicant.
Issues in the judgment
#Internal date contradiction: the certificate of delay states the appellant collected the proceedings on 1st April 2008, but the ruling also records the collection date as 1st April 2006
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- British Broadcasting Corporation (BBC) v Wetangula (Civil Appeal (Application) E152 of 2025) [2026] KECA 415 (KLR)[2026] KECA 415 (KLR)27 Feb 2026
Cite this brief
#Cite this brief
Caselaw, "Grace Wahu Njoroge v John Patrick Machira t/a Machira & Co. Advocates [2009] KECA 99 (KLR)", Case Analysis (2009). Civil Appeal 100 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/99/eng@2009-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.