Anwar Mohammed Bayusuf Limited v Diamond Trust Bank (K) Limited (Civil Appeal (Application) E099 of 2024) [2025] KECA 762 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal because the appellant left essential documents out of the appeal record — a costly procedural mistake.
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 appellant's record of appeal is so deficient as to warrant striking out of the appeal.
Key legal issues
#Whether the omission of primary pleadings and the order appealed against renders a record of appeal incompetent
Yes. The omission of primary pleadings and the order appealed against is significant and warrants striking out the record of appeal, particularly where the appellant made no attempt to rectify the deficiencies.
Rule 89(1) is couched in mandatory terms. Primary pleadings are the foundation of the suit and indispensable for understanding the context and issues before the High Court. The order of 6th May 2024 being the decision appealed against is fundamental to the appeal process. Without these documents the Court would be severely hampered in considering the merits, especially the exercise of discretion by the learned judge. The appellant offered no explanation and did not seek leave to file a supplementary record within the prescribed timelines.
Whether Rule 94(1), permitting a respondent to lodge a supplementary record of appeal, cures an appellant's incomplete record
No. Rule 94(1) provides a remedy for a respondent but does not absolve the appellant of the primary responsibility to file a complete and compliant record in the first instance.
Rule 94(1) allows a respondent who considers the record defective or insufficient to lodge a supplementary record containing further documents required for the proper determination of the appeal. However, this remedy does not transfer to the respondent the appellant's duty under Rule 89(1). The appellant neither explained the omission of crucial documents nor sought leave to file a supplementary record within the prescribed timelines, demonstrating a lack of diligence in complying with the mandatory requirements of the rules.
Whether Article 159(2)(d) of the Constitution cures the omission of an order where the ruling was included in the record
The court declined to cure the defect under Article 159(2)(d), holding that the extent and impact of the defects, and the absence of any attempt at rectification, outweighed the preference for hearing appeals on their merits.
The appellant argued that the omission of the order was a procedural technicality curable under Article 159(2)(d) since the ruling was included. The court acknowledged its discretion and the preference for resolving appeals on their merits, but held that the discretion must be exercised judiciously considering the extent and impact of defects. The omitted primary pleadings and the order appealed against were significant omissions that would hamper the proper consideration of the appeal.
Legal principles established
#- Rule 89 of the Court of Appeal Rules is mandatory and requires the inclusion of specific documents, including primary pleadings and the order appealed against, without which a record of appeal is incompetent.
- A respondent's remedy under Rule 94(1) to lodge a supplementary record does not absolve the appellant of the primary duty to file a complete record of appeal.
- The power to strike out an appeal is discretionary and must be exercised judiciously, considering the extent and impact of the defects.
Court orders
#- 1.The application dated 20th June 2024 is allowed.
- 2.The appellant's record of appeal lodged on 3rd May 2024 is struck out.
- 3.The appellant shall bear the costs of the application.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Not stated in judgment
- Jurisdiction invoked
- Appeal from the High Court pursuant to the Court of Appeal Rules, 2022 (notably Rules 89, 90 and 94(1)); this ruling concerns a notice of appeal against a High Court ruling of 4th April 2024 dismissing an application dated 14th November 2023.
Relief refused
#Appellant's prayer that the respondent's application be dismissed with costs and the appeal be heard on its merits
The omission of primary pleadings and the order appealed against, and the appellant's failure to rectify the deficiencies, rendered the record non-compliant with the mandatory Rule 89(1).
Costs
The appellant shall bear the 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.
Rule 89 of the Court of Appeal Rules is couched in mandatory terms, requiring the inclusion of specific documents crucial for the proper hearing and determination of an appeal.
The primary pleadings form the foundation of the suit and are indispensable for understanding the context and issues that were before the High Court and are now the subject of appeal.
While the court has discretion in determining whether to strike out an appeal for non-compliance, this discretion must be exercised judiciously considering the extent and impact of the defects.
It is now a settled principle that striking out a pleading is a draconian act, which may only be resorted to in plain and outright instances. The power of this court to strike out an appeal is discretionary and is exercised based on the peculiar circumstances of each case.
In the premises, the application dated 20th June 2024 is hereby allowed. The appellant's record of appeal lodged on 3rd May 2024 is hereby struck out. The appellant shall bear the costs of this application. Orders accordingly.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Anwar Mohammed Bayusuf Limited v Diamond Trust Bank (K) Limited (Civil Appeal (Application) E099 of 2024) [2025] KECA 762 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/762/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.