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Court of AppealPartially AllowedCivil Appeal No. 165 of 2020

International Centre for Insect Physiology and Ecology (ICIPE) v Mcnally & another (Civil Appeal (Application) 165 of 2020) [2025] KECA 1123 (KLR)

Court of Appeal
20 June 2025
3,646 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal struck out an entire appeal because the appellant missed filing deadlines and left essential documents out of the appeal record.

What this practically means

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Executive summary

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This judgment of the Court of Appeal at Nairobi (Karanja, M'Inoti and Achode JJA) determines two notices of motion by ICIPE seeking to strike out the memorandum of appeal, record of appeal, supplementary record of appeal and the entire appeal filed by Nancy McNally against the ELRC judgment of Makau J delivered on 5th April 2019. The Court framed two issues: whether the Supplementary Record of Appeal filed on 7th December 2022 was improperly on record, and whether the Record of Appeal was fatally defective. On the first issue, the Court held that rule 90 is mandatory: omitted documents may be included without leave only within fifteen days of lodging the record; thereafter leave of the Deputy Registrar is required. The Supplementary Record was filed years out of time without leave, following Mukenya Ndunda v Crater Automobiles and Kipkeu v Kangogo. The Court rejected the 1st respondent's reliance on the Certificate of Delay, finding the delay in obtaining certified proceedings attributable to her own tardiness, since she was notified in November 2019 that proceedings were ready but paid the fees only in June 2022. Having struck out the Supplementary Record, the Court found the Record of Appeal lacked the certified proceedings, decree and Certificate of Delay, all primary documents under rule 89(1), rendering the appeal incompetent and divesting the Court of jurisdiction. Both applications were allowed; the Supplementary Record of Appeal and the entire appeal were struck out, with costs to the 1st respondent/applicant. The decision below was not disturbed, as the appeal never proceeded to merits.

Questions the Court framed

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

  1. 1.Whether the Supplementary Record of Appeal is improperly on record and ought to be struck out
  2. 2.Whether the Record of Appeal is fatally defective so that the entire appeal ought to be struck out

Key legal issues

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01

Whether a Supplementary Record of Appeal filed outside the 15-day window without leave is properly on record

Holding

It is not; rule 90 is mandatory and the supplementary record filed out of time without leave is incompetent and struck out.

Reasoning

Rule 90 permits inclusion of omitted documents without leave only within fifteen days of lodging the record of appeal; later inclusions require leave of the Deputy Registrar. The 1st respondent filed the Supplementary Record nearly three years after the memorandum of appeal and long after the 15-day period, without any application for enlargement of time or plausible explanation. Precedent of this Court and the Supreme Court requires strict compliance.

p. 6
02

Whether the Record of Appeal is fatally defective for omitting primary documents

Holding

Yes; without the certified proceedings, decree and Certificate of Delay the record is incomplete, the appeal incompetent and liable to be struck out in its entirety.

Reasoning

Rule 89(1) mandates that the record of appeal contain a bundle of primary documents including the certified decree and proceedings. Where these are omitted and cannot lawfully be introduced via an incompetent supplementary record, the appeal cannot stand. An incomplete record prevents the Court from properly reviewing the superior court's decision and divests it of jurisdiction.

p. 7
03

Whether delay attributable to the appellant herself in obtaining certified proceedings excuses non-compliance

Holding

No; a Certificate of Delay only affords reprieve where the delay is attributable to the court, not the appellant.

Reasoning

While an appellant is afforded reprieve in computation of time where there was delay by the court in preparing proceedings after a written request, the chronology here shows counsel was notified on 21st November 2019 that proceedings were ready but only paid the fees on 7th June 2022. The delay was the 1st respondent's own tardiness and cannot avail her.

p. 6

Legal principles established

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  • Rule 90 of the Court of Appeal Rules is mandatory: a supplementary record of appeal may be filed without leave only within fifteen days of lodging the record; thereafter leave of the Deputy Registrar is required, and failure to seek leave renders the supplementary record incompetent and liable to be struck out.
  • An incomplete Record of Appeal lacking primary documents such as the certified decree and certified proceedings is incompetent and for striking out; an incompetent appeal divests the Court of jurisdiction.

Court orders

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  1. 1.The Supplementary Record of Appeal dated 7th December 2022 be and is hereby struck out
  2. 2.Civil Appeal No. 165 of 2020, be and is hereby struck out
  3. 3.Costs shall be borne by the 1st respondent

The bench

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

majority
majority
majority
On appeal from
Employment and Labour Relations Court
ELRC Petition No. 67 of 2015
Jurisdiction invoked
Appellate jurisdiction under rules 82, 84, 87 and 90 of the Court of Appeal Rules 2010 and rules 82, 84 and 90 of the Court of Appeal Rules 2022

Relief refused

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1st respondent's prayer for leave for the appeal to proceed

The Record of Appeal lacked primary documents (certified proceedings, decree and Certificate of Delay) rendering the appeal incompetent

p. 7

Costs

Costs shall be borne by the 1st respondent.

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.

It is not disputed that the Supplementary Record of Appeal was filed long after the 15 day period had lapsed.
p. 5failure to comply with rule 90 timelines
Without a complete Record of Appeal a Court cannot determine the appeal before it. Thus, if a primary bundle of documents is omitted, the appeal is considered to be incompetent and defective for failing the requirements of the law.
p. 7consequence of an incomplete record of appeal
An incompetent appeal divests the Court of the jurisdiction to consider factual, or legal controversies embodied in the relevant issues.
p. 7jurisdiction and competency of appeals
The Supplementary Record of Appeal dated 7th December 2022 be and is hereby struck out.
p. 7final orders
Civil Appeal No. 165 of 2020, be and is hereby struck out.
p. 7final orders

Issues in the judgment

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minor

The 1st respondent's submissions refer to an application dated 21st January 2023, but the Court notes there is no such application on record; the actual application is dated 27th January 2023.

minor

The replying affidavit is dated 18th October 2024 but is deposed as responding to Notices of Motion dated 18th February 2021 and 29th January 2023; the second application is dated 27th January 2023.

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, "International Centre for Insect Physiology and Ecology (ICIPE) v Mcnally & another (Civil Appeal (Application) 165 of 2020) [2025] KECA 1123 (KLR)", Case Analysis (2025). Civil Appeal No. 165 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1123/eng@2025-06-20

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