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Court of AppealDismissedCivil Appeal (Appli) 179 of 2008

DELPHIS BANK LIMITED (NOW ORIENTAL COMMERCIAL BANK LTD) v 1. CHANNAN SINGH CHATHE & 5 others [2009] KECA 215 (KLR)

Court of Appeal of Kenya
17 July 2009
ROR. S. C. OmoloDAD. K. S. AganyanyaJNJ. G. Nyamu
929 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that a missing leave-to-appeal order doesn't kill an appeal—it can simply be added later by supplementary record.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Kisumu (Omolo, Aganyanya and Nyamu, JJA) on yet another motion within Civil Appeal No. 179 of 2008, in which the respondent Rajnikant Karsandas Somaia sought to strike out the notice and record of appeal filed by Delphis Bank Limited (now Oriental Commercial Bank Limited) against an order of Tanui, J. of the High Court at Kisumu dated 4th May 2005 in H.C.C.C. No. 164 of 2003. Seven grounds were listed, but counsel for the applicant abandoned all except the contention that the record of appeal lacked an extracted copy of the order granting leave to appeal, which he argued made the appeal incurably defective. The court rejected this as an incorrect appreciation of the law, applying its earlier decision in Damaris Wangui Elizabeth v Nzuki Mwinzi. It explained the scheme of rules 85 and 89(3): documents listed in rule 85(2A) may be brought in by supplementary record; only those outside rule 85(2A) are 'primary documents' whose omission is incurable. An order granting leave to appeal falls under rule 85(1)(i), which is included in rule 85(2A), and is therefore curable. The court also noted that the leave order appeared on the record at page 195 and that no respondent showed how the omission prejudiced them. The motion was dismissed with each party bearing their own costs, with an admonition against further unnecessary applications.

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 is incurably defective for failure to include an extracted copy of the order granting leave to appeal
  2. 2.Whether an order granting leave to appeal is a primary document within the meaning of rules 85 and 89(3) of the Court of Appeal Rules

Key legal issues

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01

Whether omission of an extracted copy of the order granting leave to appeal renders a record of appeal incurably defective

Holding

It does not. The order granting leave is listed in rule 85(1)(i), which is included in rule 85(2A), so it is not a primary document and can be introduced by a supplementary record under rule 89(3).

Reasoning

The court explained that rule 85(1) sets out documents for the record of appeal; rule 85(2A) lists documents that, if omitted, may be brought in by supplementary record with leave under rule 89(3). Only documents outside rule 85(2A) are primary documents whose omission is incurable. Since the leave order is expressly covered by rule 85(2A), its absence is a curable defect and cannot justify striking out the appeal.

p. 2

Legal principles established

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  • Only documents not listed in rule 85(2A) that cannot be brought in under rule 89(3) are primary documents; their omission renders an appeal incurably defective, but a document listed in rule 85(2A) may be introduced by supplementary record
  • An order granting leave to appeal is not a primary document and may be included by way of supplementary record of appeal under rule 89(3)

Court orders

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  1. 1.The motion dated and lodged in the Court on 22nd September, 2008 be and is hereby dismissed
  2. 2.Each party to the motion shall bear their own costs thereof

The bench

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

RO
majority
DA
majority
JN
majority
On appeal from
High Court of Kenya at Kisumu
H.C.C.C. No. 164 of 2003
Jurisdiction invoked
Rule 80 of the Court of Appeal Rules (interlocutory application within Civil Appeal No. 179 of 2008)

Relief refused

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Striking out the notice of appeal and record of appeal under rule 80

No merit: the order granting leave to appeal is not a primary document and can be brought in by supplementary record; its omission does not render the appeal incurably defective

p. 2

Costs

Each party to the motion shall bear their own costs thereof

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.

There is no merit in the motion before us and it is our hope that these unnecessary applications will cease so that the appeal itself can be listed for hearing. We order that the motion dated and lodged in the Court on 22nd September, 2008 be and is hereby dismissed.
p. 2Disposition - dismissal of the striking-out motion
It is those documents which are not listed in rule 85(2A) and which, therefore, cannot be brought in under rule 89(3) and such documents are normally described by the Court as primary documents.
p. 2Definition of primary documents in a record of appeal
An order granting leave to appeal is listed at rule 85(1)(i) and that rule is specifically included in rule 85(2A). It is thus not a primary document and thus can be brought in by way of a supplementary record of appeal.
p. 2Leave-to-appeal order is not a primary document

Issues in the judgment

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minor

Appellant name misspelled in cause title as 'DELPHIS BANK LIMTITED' and respondent name inconsistently spelled ('CHANNAN SINGH CHATHE' vs 'SATWANT SINGH CHATTHE'; 'SUKHWINDER SING' without final 'H')

minor

Costs order reads 'Each part to the motion' instead of 'Each party to the motion'

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, "DELPHIS BANK LIMITED (NOW ORIENTAL COMMERCIAL BANK LTD) v 1. CHANNAN SINGH CHATHE & 5 others [2009] KECA 215 (KLR)", Case Analysis (2009). Civil Appeal (Appli) 179 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/215/eng@2009-07-17

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