Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Supreme CourtDismissedPetition 17 of 2019

Mulima & 2 others (Suing as Representatives of Ex-East African Airways Stafi Welfare Association) v Attorney General & 8 others

Supreme Court of Kenya
25 October 2019
2,436 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

Supreme Court allows appeal to proceed despite missing document if party explains omission and no prejudice shown.

What this practically means

#

The Supreme Court of Kenya ruled that failing to include a required document in an appeal record does not automatically end the case. If the party explains why the document is missing and shows they tried to get it, the court can use its discretion to let the appeal continue. The court also noted that the opposing party did not prove any harm from the omission. This decision emphasizes fairness over strict technical rules.

Executive summary

#
This ruling by the Supreme Court of Kenya (Maraga CJ, Ibrahim, Ojwang, Njoki Ndungu, Lenaola SCJJ) determined an application by the second to sixth respondents (the applicant) to strike out the petitioners' petition for failure to include a certified copy of the decree or order from the Court of Appeal in the record of appeal, as required by rule 33(4)(d) of the Supreme Court Rules, 2012. The applicant argued that the omission was fatal and inexcusable, and that the petitioners had not complied with rule 33(6) by filing a supplementary record. The petitioners responded that they had made diligent efforts to obtain the decree, including writing to the applicant for approval of a draft decree and to the Registrar of the Court of Appeal, but the registry had failed to act. The court framed the single issue of whether the petition was incomplete and incompetent for non-compliance with rules 33(4)(d) and 33(6). The court found that the petitioners had provided a sufficient explanation for the omission, having engaged both the applicant and the Court of Appeal registry over an extended period. The court held that while non-filing without explanation would be fatal, a party that explains itself sufficiently is entitled to a favourable exercise of discretion under rule 33(5). The court also noted that the applicant had not shown any prejudice that would result from allowing the petition to proceed. Consequently, the court dismissed the application, ordered the certified decree to be filed within 14 days, and directed each party to bear its own costs.

Questions the Court framed

#

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

  1. 1.whether the Petition as filed is incomplete and incompetent for failing to comply with the provisions of rules 33(4)(d) and 33(6) of the Rules

Key legal issues

#
01

Whether the failure to include a certified copy of the decree or order from the Court of Appeal in the record of appeal renders the petition incompetent and liable to be struck out.

Holding

The omission is not automatically fatal; the court has discretion under rule 33(5) to allow the matter to proceed if the party provides a sufficient explanation and no prejudice is shown to the opposing party.

Reasoning

The court examined the chronology of events showing the petitioners made repeated efforts to obtain the decree from the Court of Appeal registry and the applicant, but the registry failed to act. The court distinguished this from cases where no explanation was given, noting that the petitioners had shown diligence. The court also noted that the applicant did not demonstrate any prejudice that would result from allowing the petition to proceed. Relying on its discretionary power under rule 33(5), the court declined to strike out the petition.

Legal principles established

#
  • Non-filing of a required document without explanation is fatal and leads to striking out.
  • A party that provides a sufficient explanation for an omission may benefit from the court's discretion.
  • The court's discretion under rule 33(5) allows the appeal to proceed if no prejudice is shown to the opposing party.
  • Diligent efforts to obtain a document, even if unsuccessful, can justify the omission.
  • The burden is on the applicant to demonstrate prejudice from the omission.

Court orders

#
  1. 1.The application dated July 29, 2019 is hereby dismissed.
  2. 2.The certified copy of the decree and order of the Court of Appeal shall be filed within 14 days of this Ruling.
  3. 3.As no party is to blame for their present situation, each shall bear its costs.

The bench

#

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

majority

Wrote the judgment

majority
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
On appeal from
Court of Appeal
Jurisdiction invoked
Supreme Court Rules, 2012

Relief refused

#

striking out of the petition

the petitioners provided a sufficient explanation for the omission and no prejudice was shown to the applicant

Costs

each shall bear its costs

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.

while the non-filing of a document mentioned in rule 33(4)(d) without explanation would otherwise be fatal and the whole record of appeal would attract the strict sanction of striking out, a party that explains itself sufficiently for an omission would be the beneficiary of a favourable exercise of discretion by this court
p. 6 discretion to cure procedural defects in record of appeal
The application dated July 29, 2019 is hereby dismissed.
p. 7 final order dismissing the application to strike out
The certified copy of the decree and order of the Court of Appeal shall be filed within 14 days of this Ruling.
p. 7 order for filing of missing document
As no party is to blame for their present situation, each shall bear its costs.
p. 7 costs order

Key timeline

#
2019-07-29
Application to strike out the petition filed by the second to sixth respondents.
Ruling date (not specified)
Supreme Court dismisses the application, orders certified decree filed within 14 days.

Practical implications

#
For lawyers

Document omissions not automatically fatal

When filing an appeal in the Supreme Court, missing a required document like a certified decree does not guarantee strike-out. You must document all efforts to obtain the document and explain the delay. The court will consider your diligence and whether the other side suffers prejudice. Always file a supplementary record promptly once the document is obtained.

For businesses

Procedural errors may be forgiven

If your business is involved in a Supreme Court appeal, a missing document does not automatically end your case. The court looks at whether you made genuine efforts to comply and whether the other side is harmed. Keep records of all communications with the court and opposing parties. This ruling encourages courts to focus on substance over technicalities.

For individuals

Fairness over strict rules

If you are an individual appealing to the Supreme Court and miss a required document, you are not automatically out of court. You must show you tried your best to get the document and explain why it is missing. The court will decide based on fairness. This protects your right to be heard even if there is a minor procedural slip.

Frequently asked questions

#
What happens if I miss a document in a Supreme Court appeal in Kenya?+

It is not automatically fatal. The Supreme Court can use its discretion to allow your appeal to proceed if you explain why the document is missing and show you made efforts to get it. The other side must also prove they are harmed by the omission.

Can the Supreme Court strike out my appeal for missing a certified decree in Kenya?+

Yes, but only if you fail to explain the omission. If you provide a sufficient explanation and the other party shows no prejudice, the court may allow the appeal to continue. The court prioritizes fairness over strict technical compliance.

What is rule 33(4)(d) of the Supreme Court Rules in Kenya?+

It requires that a record of appeal include a certified copy of the decree or order being appealed. If this document is missing, the court can strike out the appeal. However, the court has discretion under rule 33(5) to allow the appeal if the omission is explained.

How do I prove I tried to get a missing document for a Supreme Court appeal in Kenya?+

Keep copies of all letters, emails, and requests to the court registry and the opposing party. Show that you asked for approval of a draft decree or followed up with the registrar. The court will consider your diligence when deciding whether to excuse the omission.

Cite this brief

#

Cite this brief

Caselaw, "Mulima & 2 others (Suing as Representatives of Ex-East African Airways Stafi Welfare Association) v Attorney General & 8 others", Case Analysis (2019). Petition 17 of 2019. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2019/2/eng@2019-10-25

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