Rashid Jeneby v Prime Bank Limited [2019] KECA 1004 (KLR)
The bottom line
#Kenya's Court of Appeal refused to strike out Prime Bank's record of appeal because omissions were cured by a supplementary record filed under binding pre-trial directions.
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 application under Rule 84 was filed within the prescribed thirty days of service of the record of appeal
- 2.Whether the respondent's failure to comply with Rules 82(2) and 87(1) of the Court of Appeal Rules in compiling the record of appeal justified striking out the record
- 3.Whether the filing of a supplementary record of appeal pursuant to the Deputy Registrar's pre-trial directions cured the omissions complained of
Key legal issues
#Timeliness of the Rule 84 application
The application was filed within thirty days of service of the record of appeal and was therefore properly before the court, which proceeded to examine its merits
The record of appeal dated 25th August 2017 was lodged on 28th August 2017 and served on the applicant's advocate on 25th August 2017 (Volume 1) and 11th September 2017 (Volume 2). The application filed on 2nd October 2017 fell within the thirty-day window in the proviso to Rule 84, so the court had jurisdiction to entertain it.
Effect of non-compliance with Rules 82(2) and 87(1) in compiling the record of appeal
Although the respondent admittedly did not comply with Rules 82(2) and 87(1)(b)(f)(h), the omissions were curable: Rule 88 permits omission of documents to be remedied by supplementary record within fifteen days without leave, and thereafter with leave
The court held Rule 87(1) is subject to Rule 88 and Rule 87(3). The respondent did not use the fifteen-day reprieve, but the Deputy Registrar granted leave during pre-trial proceedings to file a supplementary record of appeal, which the respondent complied with on 30th November 2017. Counsel for the applicant made no reply to the assertion that all concerns had been addressed.
Whether the striking-out application should still succeed
The application was dismissed as overtaken by events because the respondent fully complied with the Deputy Registrar's pre-trial directions by filing the supplementary record of appeal
The court found that the respondent's filing of the supplementary record of appeal on 30th November 2017 addressed all the concerns raised in the notice of motion, and the applicant made no reply to counsel's assertion to that effect. The Deputy Registrar's directions remained on record and binding, so striking out the record served no purpose.
Legal principles established
#- An application under Rule 84 to strike out a notice of appeal or record of appeal must be brought within thirty days of service of the notice of appeal or record of appeal, failing which the court lacks jurisdiction to entertain it
- Rule 87(1) is not absolute: documents omitted from a record of appeal may be included in a supplementary record of appeal within fifteen days of lodging the record without leave, and thereafter with leave of the Deputy Registrar
- Omissions in a record of appeal may be cured by a supplementary record of appeal filed in compliance with lawful pre-trial directions of the Deputy Registrar, and a striking-out application may fail as overtaken by events where such cure has occurred
Court orders
#- 1.The applicant's Notice of Motion dated 29th September 2017 seeking to strike out the record of appeal is dismissed
- 2.Each party to bear own costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court at Nairobi
- Nairobi Cause No. 1156 of 2012
- Jurisdiction invoked
- Rule 84 of the Court of Appeal Rules, 2010 (application to strike out a notice of appeal or record of appeal)
Relief refused
#Striking out of the record of appeal dated 25th August 2017 (Civil Appeal No. 304 of 2017)
The application was overtaken by events; the respondent cured the omissions by filing a supplementary record of appeal pursuant to the Deputy Registrar's binding pre-trial directions
Costs
Each party to bear own costs of the application
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.
jurisdiction of the Court to intervene on behalf of an aggrieved party under the said rule is dependent on the aggrieved party seeking the requisite court’s intervention within thirty days of service upon the aggrieved party of the Notice of Appeal or the record of appeal
When a document referred to in Rule 87(1) and (2) is omitted from the record of appeal the appellant may within fifteen days of lodging the record of appeal, without leave, include the document in the supplementary record of appeal filed under Rule 92(3) and thereafter with leave of the Deputy Registrar on application
it is our finding that the applicant’s application has been overtaken by events by the respondent’s action of complying fully with the pretrial directions given by the Deputy Registrar which are still on record and therefore binding
In the result, the application is dismissed. We direct each party to bear own costs of the application.
Issues in the judgment
#The applicant is described as 'APPLICANT' in the title despite the case being styled a Civil Appeal, and the ruling concerns an interlocutory application within the pending appeal; the substantive appeal itself was not decided in this ruling
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rashid Jeneby v Prime Bank Limited [2019] KECA 1004 (KLR)", Case Analysis (2019). Civil Appeal No. 304 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/1004/eng@2019-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.