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Court of AppealDismissedCivil Appeal (Application) No. 76 of 2018

Autoports Freight Terminal Limited v Kenya Ports Authority [2019] KECA 529 (KLR)

Court of Appeal of Kenya
11 July 2019
2,381 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to strike out KPA's appeal over minor filing mistakes, confirming small procedural errors can be fixed rather than end a case.

What this practically means

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Executive summary

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This Court of Appeal ruling (Visram, Gatembu Kairu and Murgor, JJ.A.) determined two applications by Autoports Freight Terminal Limited seeking to strike out Kenya Ports Authority's appeal, Civil Appeal No. 76 of 2018, on procedural grounds. The applicant argued first that the record of appeal contained an uncertified decree, rendering the appeal incompetent under rule 87(1) of the Court of Appeal Rules, and that the record was served two days late; second, that a supplementary record of appeal filed beyond fifteen days without leave of the Deputy Registrar contravened rule 88. The respondent admitted the errors, explaining them as inadvertent, and sought to have the supplementary record deemed properly filed. The Court found the two-day delay in service attributable to the registry and not inordinate, and deemed the record filed within time, invoking rule 4 and Article 159(2)(d) of the Constitution. On the certified decree, the Court followed its decision in Truphosa Cheredi Mudembei v John K. Malembi, holding that the omission was not fatal since the document could be introduced through a supplementary record. Although rule 88 required leave for the late supplementary record, the Court, applying Mukenya Ndunda v Crater Automobiles Limited, held that striking out is reserved for flagrant, deliberate, flippant or reckless breaches. The respondent's conduct was not willful, and the Court exercised its inherent jurisdiction under sections 3A and 3B of the Appellate Jurisdiction Act to admit the supplementary record. Both motions were dismissed with each party bearing their own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appeal should be struck out because the decree included in the record of appeal was not certified
  2. 2.Whether the two-day delay in serving the record of appeal rendered the appeal incompetent
  3. 3.Whether the filing of the supplementary record of appeal without leave of the Deputy Registrar after the lapse of fifteen days warranted striking out the appeal
  4. 4.Whether the Court should exercise its discretion to admit the supplementary record of appeal under its inherent jurisdiction

Key legal issues

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01

Whether omission of a certified decree from the record of appeal is fatal to the appeal

Holding

It is not fatal; the certified decree can be introduced through a supplementary record of appeal

Reasoning

The Court relied on its earlier decision in Truphosa Cheredi Mudembei v John K. Malembi, which held that the omission of a certified decree is curable. The respondent obtained the certified copy promptly upon being alerted of the defect and filed it by way of supplementary record, so the defect was procedural and curable rather than going to the competency of the appeal.

p. 2
02

Whether filing a supplementary record of appeal without leave of the Deputy Registrar after fifteen days warranted striking out the appeal

Holding

It did not, where the failure was inadvertent and the respondent sought leave at the earliest opportunity; the Court granted leave under its inherent jurisdiction

Reasoning

Rule 88 requires leave of the Deputy Registrar for a supplementary record filed beyond fifteen days. However, striking out is a draconian remedy reserved for flagrant, deliberate, flippant or reckless breaches. The respondent acted expeditiously and was disrupted by the strike-out motion; the Court therefore invoked sections 3A and 3B of the Appellate Jurisdiction Act to admit the supplementary record and dismissed both applications.

p. 3
03

Whether a two-day delay in serving the record of appeal rendered it incompetent

Holding

No; the delay was not inordinate and was attributable to the registry, and the record was deemed filed within time

Reasoning

Rule 4 allows the Court an unfettered discretion to extend time, exercisable judiciously, and Article 159(2)(d) of the Constitution requires justice to be administered without undue regard to procedural technicalities. The explanation that the Deputy Registrar did not sign the record on the filing date was accepted and no prejudice was shown.

p. 2

Legal principles established

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  • The power to strike out an appeal for failure to follow procedural rules must be exercised cautiously, and only where the failure was flagrant, deliberate, flippant or reckless
  • The omission of a certified copy of the decree from a record of appeal is not fatal and can be cured by a supplementary record of appeal
  • Rules of procedure are handmaidens of justice and should not be used to defeat it
  • The Court's discretion to extend time under rule 4 must be exercised judiciously, but short, non-inordinate delays explainable by registry shortcomings may be excused

Court orders

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  1. 1.Leave granted to the respondent to file the supplementary record of appeal dated 26th September 2018, admitted under sections 3A and 3B of the Appellate Jurisdiction Act
  2. 2.The Notice of Motion dated 17th July 2018 is dismissed
  3. 3.The Notice of Motion dated 28th September 2018 is dismissed
  4. 4.Each party to bear their own costs

The bench

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

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

Jurisdiction invoked
Rules 84 and 88 of the Court of Appeal Rules; sections 3A and 3B of the Appellate Jurisdiction Act (inherent jurisdiction)

Relief refused

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Striking out of the record of appeal (Notice of Motion dated 17th July 2018)

The omission of the certified decree was not fatal and could be cured through a supplementary record; the two-day delay in service was explained and not inordinate

p. 3

Striking out of the supplementary record of appeal (Notice of Motion dated 28th September 2018)

The respondent did not flagrantly or willfully disregard the rules; the Court exercised its discretion to grant leave to file the supplementary record

p. 3

Costs

Each party to bear their own costs

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.

Much as we do not condone sloppiness on the part of parties, we are of the view that this is an omission that is not fatal. The document can be introduced through a supplementary record of appeal.
p. 2Omission of certified decree is curable
The power to strike out an appeal or a notice of appeal on account of failure by an appellant to follow the rules of procedure requires to be exercised carefully and only in cases where it is shown that the party at fault flagrantly or deliberately or flippantly or recklessly failed to follow the rules.
p. 3Striking out is a remedy of last resort
We take the view that the rules of procedure are designed to assist in the administration of justice. They are intended to serve as the hand-maidens of justice, not to defeat it
p. 3Procedural rules as handmaidens of justice
With such admission, the substratum of the Notice of Motions dated 17 th July 2018 and 28th September 2018 to strike out the appeal falls away, and as such, they are hereby dismissed. We order each party to bear their own costs.
p. 3Final orders and costs

Issues in the judgment

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minor

The coram and case heading place the Court at Mombasa, but the judgment states it was dated and delivered at Malindi

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, "Autoports Freight Terminal Limited v Kenya Ports Authority [2019] KECA 529 (KLR)", Case Analysis (2019). Civil Appeal (Application) No. 76 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/529/eng@2019-07-11

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