Anwar Mohammed Bayusuf Limited v Diamond Trust Bank (K) Limited (Civil Appeal (Application) E100 of 2024) [2025] KECA 766 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an incomplete appeal record, confirming that registry approval cannot fix missing mandatory documents.
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 defective that it warrants striking out
Key legal issues
#Whether the omission of primary pleadings and the certified order appealed against from the record of appeal warranted striking it out
Yes. Rule 89(1) is mandatory and the omitted documents are indispensable; without them the Court cannot properly consider the appeal, which concerns the exercise of discretion by the High Court judge. The record was struck out.
Rule 89(1) requires the record to contain the pleadings, the judgment or order, and the certified decree or order. The primary pleadings form the foundation of the suit and the order of 6th May 2024 is the decision appealed against, hence fundamental. Omitting them would severely hamper the Court's ability to consider whether the learned judge exercised discretion judiciously. The appellant neither explained the omissions nor sought leave to file a supplementary record within prescribed timelines.
Whether the Deputy Registrar's scrutiny and approval of the record before filing shielded it from being struck out
No. Approval for filing by the registry does not cure non-compliance with the mandatory content requirements of Rule 89; the appellant remains bound by the Rules.
The appellant argued the record had been scrutinised and approved by the Deputy Registrar under the Practice Directions and Registry Manual, so no mechanism existed to strike it out. The Court, however, treated compliance with Rule 89 as decisive: the mandatory nature of the rule, the significance of the omitted documents, and the absence of any rectification effort meant the application had merit notwithstanding prior registry approval.
Whether the respondent's failure to lodge a supplementary record under Rule 94(1) defeated the striking-out application
No. Rule 94(1) is a remedy available to a respondent but does not displace the appellant's primary duty to file a compliant record.
The appellant contended the respondent should have exercised its right under Rule 94(1) to lodge a supplementary record. The Court acknowledged this remedy but held it does not absolve the appellant of primary responsibility for a complete record. The appellant's lack of diligence - no explanation for the omissions and no timely application for leave to file a supplementary record - weighed against indulgence.
Legal principles established
#- Rule 89(1) of the Court of Appeal Rules is mandatory: a record of appeal must contain the primary pleadings and the certified order appealed against, and omission of such essential documents renders the record liable to be struck out.
- The absence of essential documents such as the order appealed against goes to jurisdiction and renders an appeal incompetent.
- While Rule 94(1) permits a respondent to lodge a supplementary record of appeal, this does not absolve the appellant of the primary duty to file a complete and compliant record of appeal.
- The power to strike out an appeal is discretionary and must be exercised judiciously based on the peculiar circumstances of each case.
Court orders
#- 1.The respondent's application dated 20th June 2024 is allowed
- 2.The appellant's record of appeal lodged on 13th 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.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court
- Jurisdiction invoked
- Inherent appellate jurisdiction under the Court of Appeal Rules, 2022 (interlocutory application to strike out a record of appeal)
- Consolidated with
- Civil Application No. E099 of 2024 (relied on for submissions; related 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.
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.
The ruling in Bwana Mohamed Bwana v Silvano Buko Bonayo & Others (supra) emphasizes that the absence of essential documents renders an appeal incompetent.
In the premises, the application dated 20th June 2024 is hereby allowed. The appellant's record of appeal lodged on 13th May 2024 is hereby struck out. The appellant shall bear the costs of this application.
Issues in the judgment
#The coram lists three Judges of Appeal but the judgment is undated in the body as to authorship; a single judgment of the court is delivered by Dr. K. I. Laibuta with the certification line, so separate authorship cannot be attributed to Ochieng or Ngenye-Macharia.
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) E100 of 2024) [2025] KECA 766 (KLR)", Case Analysis (2025). Civil Application No. E099 of 2024 (related application dated 20th June 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/766/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.