Safaricom Limited v Jack K. Khanjira & another [2018] KECA 141 (KLR)
The bottom line
#Kenya's Court of Appeal refused to strike out Safaricom's appeal, confirming that minor procedural gaps like omitted typed proceedings won't kill an interlocutory appeal.
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 Notice of Appeal was filed out of time without leave
- 2.Whether the Notice of Appeal was duly endorsed by the Deputy Registrar
- 3.Whether service of the Notice of Appeal on the applicants was effected out of time
- 4.Whether the Record of Appeal was fatally defective for non-inclusion of the typed proceedings or judge's notes
Key legal issues
#Timeliness of filing and service of the Notice of Appeal
The Notice of Appeal filed on 19th March 2018 against the order of 6th March 2018 was within the 14-day period, and service by post was proven and uncontroverted.
The appeal challenged the order of 6th March 2018, so the notice had to be lodged within 14 days. It was filed on 19th March 2018, within time. The respondent also produced a waybill evidencing service by post to the applicants' last known postal address; the applicants never controverted that service or denied the address. Under Order 2 Rule 11 of the Civil Procedure Rules, untraversed allegations of fact are deemed admitted, so service was timely and the Notice was properly on record.
Whether omission of typed proceedings renders the Record of Appeal fatally defective in an interlocutory appeal
It does not; Rule 87's proviso permits exclusion of documents not relevant to the matters in controversy on the appeal.
The Court defined an interlocutory appeal as one occurring before the trial court's ruling on the entire case, and found this appeal interlocutory since trial court proceedings were still pending judgment. Rule 87 lists primary documents, but the proviso confines what may be excluded to the judge's notes, transcripts, and documents put in evidence, or parts thereof not relevant. The omitted typed proceedings fell within this permissible exclusion, and the law-journal excerpt relied on by the applicants concerned criminal trial proceedings and was distinguishable.
Discretionary nature of the power to strike out an appeal
The power to strike out an appeal is discretionary and depends on the circumstances of each case; technicalities should not defeat substantive issues.
The Court observed that striking out is discretionary and case-specific. The respondent's counsel invoked the overriding objective, arguing that the application was founded on technicalities of procedure and that no prejudice had been demonstrated from any alleged late service. The Court, finding the Notice and Record in order and the appeal raising substantive issues of law, declined to strike it out and held that the appeal should be heard on its merits.
Legal principles established
#- The power of the Court of Appeal to strike out an appeal is discretionary and exercised on the peculiar circumstances of each case.
- Rule 87's proviso allows an appellant in a civil interlocutory appeal to exclude the trial judge's notes, transcripts or documents in evidence not relevant to the matters in controversy on the appeal.
- An allegation of fact made by a party in pleadings is deemed admitted unless traversed by the opposing party.
Court orders
#- 1.The applicants' application dated 7th June 2018 to strike out the Notice of Appeal and Record of Appeal is dismissed
- 2.Costs of the application awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- High Court Civil Case No. 231 of 2011
- Jurisdiction invoked
- Rules 84 and 104(b) of the Court of Appeal Rules (application to strike out a notice and record of appeal)
Relief refused
#Striking out of the Notice of Appeal
The Notice of Appeal was filed within the statutory 14 days and was duly endorsed by the Deputy Registrar; service by post was uncontroverted
Striking out of the Record of Appeal
Non-inclusion of typed proceedings was not fatal in an interlocutory appeal; Rule 87's proviso permits exclusion of irrelevant documents
Costs
Application dismissed with costs in the appeal to the respondent
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.
The power of this Court to strike out an appeal is discretionary and its exercise is based on the peculiar circumstances of each case.
Given the uncontroverted advance service by way of post, this Court finds that service was effected in time. On the premises, the Notice of Appeal is in order and properly on record.
Therefore, the non inclusion of the typed proceedings in this case is not a fatal defect.
We are not persuaded that this application has merit and we consequently dismiss it with costs in the appeal.
Issues in the judgment
#The judgment states the Notice of Appeal 'needed to be lodged within 14 days, that is by 22nd March, 2018' while the respondent's counsel computed the deadline as 20th March 2018; the discrepancy is immaterial since filing on 19th March was within either computation.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Safaricom Limited v Jack K. Khanjira & another [2018] KECA 141 (KLR)", Case Analysis (2018). Civil Appeal (Application) No. 57 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/141/eng@2018-11-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.