International Centre for Insect Physiology and Ecology (ICIPE) v Mcnally & another (Civil Appeal (Application) 165 of 2020) [2025] KECA 1123 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Supplementary Record of Appeal is improperly on record and ought to be struck out
- 2.Whether the Record of Appeal is fatally defective so that the entire appeal ought to be struck out
Key legal issues
#Whether a Supplementary Record of Appeal filed outside the 15-day window without leave is properly on record
It is not; rule 90 is mandatory and the supplementary record filed out of time without leave is incompetent and struck out.
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.
Whether the Record of Appeal is fatally defective for omitting primary documents
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.
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.
Whether delay attributable to the appellant herself in obtaining certified proceedings excuses non-compliance
No; a Certificate of Delay only affords reprieve where the delay is attributable to the court, not the appellant.
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.
Legal principles established
#- 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
#- 1.The Supplementary Record of Appeal dated 7th December 2022 be and is hereby struck out
- 2.Civil Appeal No. 165 of 2020, be and is hereby struck out
- 3.Costs shall be borne by the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
Costs
Costs shall be borne by the 1st respondent.
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.
It is not disputed that the Supplementary Record of Appeal was filed long after the 15 day period had lapsed.
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.
An incompetent appeal divests the Court of the jurisdiction to consider factual, or legal controversies embodied in the relevant issues.
The Supplementary Record of Appeal dated 7th December 2022 be and is hereby struck out.
Civil Appeal No. 165 of 2020, be and is hereby struck out.
Issues in the judgment
#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.
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.