Allan Stephen Reynolds v Twiga Chemical Industries Ltd [2010] KECA 251 (KLR)
The bottom line
#Kenya's Court of Appeal refused to strike out Twiga Chemical's appeal, ruling that unproven claims of missing documents cannot block a case from being heard.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether any documents produced as exhibits in the superior court are missing from the record of appeal
- 2.Whether the record of appeal should be struck out under rule 80 on that account
Key legal issues
#Whether the record of appeal should be struck out for alleged missing exhibits
The application fails; no document was shown to be missing and the applicant could not produce a single copy of any alleged missing document
The Court weighed the unsubstantiated allegation of missing exhibits against the respondent's sworn assertion that no primary document had been left out. Neither party was in possession of the alleged missing documents, so none could be added. The Court found the application was a delaying tactic aimed at preventing the appeal from being heard on its merits, and dismissed it with costs while leaving liberty to supplement the record.
Whether a notice of appeal already survived a prior strike-out motion can be struck out again
A second application to strike out the same notice of appeal after an earlier dismissal would be frivolous, vexatious and an abuse of process; counsel properly abandoned it
The Court noted the first motion to strike out the notice of appeal was dismissed on 8th June 2007. A renewed prayer against the same notice could not succeed and would abuse the process of the court, so the applicant's counsel did not pursue it, confining the motion to the record of appeal.
Legal principles established
#- A party resisting striking out of a record of appeal cannot be denied the right to be heard on appeal on an unsubstantiated assertion that documents are missing, where the applicant cannot produce even a copy of the alleged missing document
- A party may supplement the record of appeal with documents in its possession by way of supplementary affidavit under sections 3A and 3B of the Appellate Jurisdiction Act, and the Court may grant leave for that purpose
Court orders
#- 1.The notice of motion dated 6th and lodged on 9th February 2007 is dismissed
- 2.Applicant to pay costs of the application
- 3.Leave granted for the applicant to bring on record any alleged missing documents pursuant to the Court's order of 7th January 2010
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. Suit No. 2772 of 1997
- Jurisdiction invoked
- Appellate jurisdiction under the Appellate Jurisdiction Act (sections 3A and 3B) and rule 80 of the Court of Appeal Rules, on an application to strike out the notice and record of appeal
Relief refused
#Striking out of the record of appeal (prayer 2)
The applicant failed to substantiate the claim that documents were missing; the respondent affirmed the record was complete and neither party possessed the alleged missing documents
Striking out of the notice of appeal (prayer 1)
Abandoned by counsel as it would have been frivolous, vexatious and an abuse of process given the Court's dismissal of the earlier motion on 8th June 2007
Costs
Application dismissed with costs - the applicant (Reynolds) to pay the costs of the motion
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.
It would be cruel to deny the respondent the right to be heard on its appeal on the unsubstantiated assertion that documents are missing from the record
the applicant appears to us to be clutching at straws in order to prevent the appeal already filed being heard on its merit
The notice of motion dated 6th and lodged in the Court on 9th February, 2007, however, fails and we order that it be and is hereby dismissed with costs.
we would order that if the applicant is able to bring on record the alleged missing documents he is at liberty to do so pursuant to the Court's order made on 7th January, 2010
Issues in the judgment
#The ruling refers to the Court's earlier order of 8th June 2007 dismissing the first strike-out motion, but elsewhere mentions an order of 7th January 2010 permitting supplementation of the record without explaining its origin
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Allan Stephen Reynolds v Twiga Chemical Industries Ltd [2010] KECA 251 (KLR)", Case Analysis (2010). Civil Appeal No. 300 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/251/eng@2010-06-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.