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This is a free critical analysis on current legal issues. It can either be a thematic analysis of a topic while referencing relevant cases or analysis of certain authoritative or jurisprudence making cases decided by various courts in the Eastern African region.

Technical Justice
Date: Tue 5 Oct 2010

Rule 85 of the Court of Appeal Rules



In this Hot From the Bench, LawAfrica’s Charles Kanjama takes a critical look at Rule 85 of the Court of Appeal Rules. Leveraging a vast database of decisions, He sums up by stating that the local courts have been painfully resolute in their interpretation of rule 85 of the Court of Appeal Rules with the result that Appeals daily continue to succumb in the already overflowing graveyard of struck out appeals. The cases referred to in this write-up are available to LawAfrica Law Reports on


Perhaps no provision of law so much justifies Charles Dickens’ depracating view of the practice of law as rule 85 of the Court of Appeal Rules. Dickens, writing one and a half centuries ago, explains about a Chancery case that dragged on for three generations and describes lawyers as “mistily engaged in one of the ten thousand stages of an endless cause, tripping one another upon slippery precedents, groping knee deep in technicalities, running their heads against walls of words and making a pretence of equity.”


And so it has become the order of the day in Kenya, where numerous appeals are struck out on account of a procedural technicality, with the attendant grave consequences on thrown away time and costs. In Pepco v Carter (24/3/00) for example, the court struck out a record of appeal from a ruling of 1992 on the ground, inter alia, that the notice of appeal was incurably defective for being titled “Notice of Intended Appeal.” Ouch!


Such a situation has come about principally due to the courts’ interpretation of rule 85 of the Rules and the failure of advocates to faithfully tow the line. In Silpack Industries v Kioko (14/11/00), the court repeated its ruling, issued times without number, that a record of appeal is incompetent if the order or decree is uncertified, some exhibits are omitted, the decree doesn’t accord to judgment or the order or notice of appeal is defective. The court was unflinching: “No one has ever told the court that the rules are too difficult to be understood and complied with. We agree… that rules are merely the handmaiden of justice, but it would be equally a sad day for justice if the court enforced no rules at all. Indeed that may well lead to more serious mischief than observance of the rules.”


Yet despite this seemingly staunch almost harsh loyalty to the procedural provisions of rule 85(1) and (2A), a careful inspection of some recent cases in the LawAfrica Law Reports (LLR) database exposes occasional deviations in the courts’ reasoning that bring into clearer focus the hazardous path that every advocate is forced to tread once he lodges an appeal in the highest court.


Rule 85 of the Rules deals with the contents of a record of appeal. By sub-rule (1), a record of appeal shall contain: (a) an index; (b) a statement showing address for service; (c) the pleadings; (d) the notes of the proceedings; (e) transcript of any shorthand notes taken; (f) affidavits read and all documents put in evidence at the hearing; (g) the judgment; (h) certified copy of decree or order; (i) the order giving leave to appeal; (j) the notice of appeal; and (k) such other necessary documents including relevant interlocutory proceedings. By sub-rule (2A), the documents in paragraphs (a), (b), (e), (i) and (k) may with leave of the court be included in a supplementary record of appeal.


In AG v Pattni (30/3/99), the Notice of Appeal mistakenly referred to the appellant as the respondent and misdated the ruling in question. The court ruled, “The notice of appeal which the applicant wishes to correct seems to me on the face of it to be incurably defective. This is a serious mistake… As a single judge I have no power to validate an invalid notice of appeal.” The implication was that a three-judge bench might have that power.


In Anjumani v Ali (23/7/99) the court gave anxious consideration to the effect of rule 44, which allows the Court to amend “any document”, and rule 85(2A). The court concluded, “Rule 44 must necessarily be construed in the light of rule 85(2A) which was brought in by way of an amendment in 1990. If ‘any document’ were interpreted liberally to include every document then the whole purpose of rule 85(2A) would be defeated… [Hence] a notice of appeal could not be amended in any way to correct any mistake therein.” It was a bold stroke for the efficacy of the rules, a stroke that has converted the last half decade into a graveyard for appeals, littered with the coffins of some pretty arguable appeals that floundered at the altar of technicality.


No wonder then, that in R v KPTC (19/11/99), the court held, suo motu, that a correctly dated order mistakenly attributed to Justice Khamoni instead of Justice Githinji was incurable by amendment. Section 100 of the Civil Procedure Act confers on the court a general power to amend any defect in proceedings while section 3(2) of the Appellate Jurisdiction Act vests in the Court of Appeal the power of the High Court. Yet the court would not be willing to allow these legislative provisions to qualify in any way or defeat an amendment to rule 85(2A) of the Rules, which is evidently delegated legislation. Nor would rule 1(2) (on inherent power of the Court) and rule 44 (on general power to amend) be allowed to subtract even a whit from the full force of rule 85(2A). The ratio was blunt: “Every rule, particularly one brought in by way of amendment, must be given effect.”


The order in R v KPTC did not set out particulars of the claim or relief sought and did not properly describe the parties. The court would not condone these errors. The message was loud and clear: the Court of Appeal would not suffer any but the slightest deviation from procedure, and “shall” in the rules would be construed as “must”.


Hence, in 4-sentence rulings, the Court in Maxwell v Postbank Credit (6/12/99) and Narok C.C. v Transmara C.C. (24/11/99) did not hesitate to throw out appeals on grounds of omission from the record of appeal of a 3rd Party Notice and an exhibit respectively. In a 3-sentence ruling, the record of appeal in Masita v Onduto (20/6/01) fell victim of the rules because some Kiswahili documents had no certified translation contrary to rule 85(1)(f). And in M’athara v M’athara (27/10/99) two sentences were enough to strike out a record of appeal whose order was undated. It was a clear warning to advocates.


It was simply a technical job of distinguishing primary and secondary documents. Let the attention of an advocate waver for one minute while preparing the former, let a dismal disposition allow his attention to slip for one moment while preparing a notice of appeal, and ‘voila!’ his appeal was done for. Advocates in the know would intentionally decline to respond to instructions to approve wrong decrees or orders (Magana Holdings v Njeri 3/12/99), or would even knowingly approve them (Karl v Karl 24/12/97, Mbugua v Mbugua 13/10/00), hoping that when the appeal came, they could effectively turn back and disown them.


The decision whether a document is a primary one has now assumed serious proportions. In Odera v Machira (30/6/00), the court called for another file during the proceedings. The question as to whether the same was an exhibit required under rule 85(1)(f) was answered in the negative. However, not so in Pepco v Carter (24/3/00) where the judge had actually referred to some photos in the record of appeal of some previous proceedings. In CBA v Ndirangu (30/6/00), some documents put to the witness but not yet formally tendered as evidence were held to be primary documents. Similarly, in Delphis Bank v Caneland (24/6/99) the court refused to buy the explanation that after original pleadings are amended, the same need not form part of the record of appeal because the court thereafter only looks at amended pleadings.


The primary-secondary distinction has been a bit more puzzling in the case of affidavits and preliminary applications during the proceedings. In Commissioner of VAT v Shah (6/7/01) the court struck out an appeal in a judicial review action because the chamber summons seeking leave for review was not included in the record. Clearly, the court said, section 2 of the Civil Procedure Act defines pleading to include summons. However, in KBL v Kiambu Transport (30/3/01), the affidavit attached to a certificate of urgency preliminary to the substantial application was held not to be a primary document.


In Mucuha v Ripples (4/5/01), decided two months before Commissioner of VAT v Shah, the documents omitted included the chamber summons by which leave was sought for committal proceedings. The unanimous agreement of court and counsel for both parties was that the same was not a primary document! Strangely however, the court held that the affidavit sworn in reply to this application is prima facie primary. In this case, the affidavit was deemed not a primary document since it was not read at the hearing of the substantive application. Somewhat in tandem, in Shretta v Vadag (7/7/00), the failure to include an affidavit sworn in a previous interlocutory application was held to be a curable defect. The affidavit was a secondary document “under rule 85(1)(k) at best. It was not an affidavit read or put in evidence at the hearing.”


Regarding errors or omissions in typed proceedings included in the record of appeal, the decisions of the courts have been at variance. In Pepco v Carter (24/3/00), the court held that numerous errors and omissions in the typed proceedings in a record of appeal was a fatal defect. In Mucuha v Ripples (4/5/01), the court asserted that an advocate is not required to satisfy himself that the handwritten copy tallies with the typed copy of proceedings. “It is the duty of the trial court or indeed any court to ensure that copies of either proceedings or ruling or judgment agree with the original…. We have checked the copy of proceedings… and it is clear they bear a certificate of the Deputy Registrar… To our minds, the appellant or his counsel was perfectly entitled to… presume that the typed proceedings agree with the handwritten ones.”


On close scrutiny, it appears that the courts have not even been consistent regarding the incurability of defects in primary documents. The rule in Anjumani v Ali would deny any right to amend a primary document or include it in a supplementary record of appeal. However, in Macharia v Muigai (29/9/00), where some exhibits (primary documents) were unclear and illegible contrary to rule 13(2), the court held that this did not call for striking out of the appeal. “Either the appellant or the respondent could bring legible copies on record with leave of court by filing a supplementary record of appeal.” An identical position was taken in Shretta v Vadag (7/7/00).


Even the Notice of Appeal has not always been treated consistently. A notice of appeal which described a judgment as a ruling and which was signed on behalf of the appellant as ‘defendant’ was not fatally defective (Coastal Kenya v Kasiti 14/7/00). The respondent had suffered no possible prejudice. In Macharia v Muigai however, the date of the ruling was 26th October in the judge’s notes, 24th October in the typed ruling and 25th October in the Notice of Appeal. This notice was held defective; it could not be cured because the notice of appeal is what gave jurisdiction to the court. In contrast, in Mutiso v Mutiso (9/2/99) where the notice of appeal did not show that it had been served, the same was not a fatal irregularity because the respondent admitted that he was served.


In Pepco v Carter a party named “Pepco Construction Company Limited” was mistakenly described in the Notice of Appeal as “Pepco Construction & Transport Co Ltd”, the pre-amended name in the file. The title of the notice of appeal erroneously included the word “Intended”. Holding these defects incurable, the court said, “These errors are not the sort of errors that can be cured under rule 44.” In Shretta v Vadag, the fact that the notice of appeal named the parties’ advocates and not the parties was held not to be irregular. In any case, the parties affected in the appeal and not personally served with notice were represented through their trustees. However, in Musa v Ereri (7/7/00) the court conceded that it would not condone a notice of appeal filed by six shareholders of Ereri Co. in a representative capacity for 44 other undisclosed shareholders of the same company.


In view of the foregoing, what would one say of Jirongo v Trust Bank (11/5/01) where a single judge amended the date of the order stated on a Notice of Appeal to read 18th July, not 25th July, because the respondent did not express any objection. On reference to a full bench, the court declared that there had been no misdirection on his part. Again in Greenfield Investments v Mawji (13/11/98), a notice of appeal had misnamed the parties and misdated the order. An application to amend the notice was granted by consent, and the court subsequently refused to strike out the appeal on the respondent’s argument that the above defects were incurable by amendment. Two of the judges in the Jirongo case had a few months before in Obonyo v Thabiti Insurance (24/11/00) firmly asserted, “a notice of appeal cannot be amended.”


Even regarding defects in the order, the court has not been of one mind. In R v KPTC (19/11/99), the court would not be willing to condone omission of particulars from the order, even though the same may not be treated as a fatal defect. One day earlier, in Shah v Aperit, the same court declared such an omission fatal. Order XX rule 7(6), read together with rule 6(1) Civil Procedure Rules was clear: an order shall be drawn up in like manner as a decree. Two weeks later in Magana Holdings v Njeri, the court declared Shah per incuriam on the ground that section 2 of the Civil Procedure Act clearly defined a decree to exclude an order!


Mucuha v Ripples is a classic example of a decision that differs with the court’s established line of thought, almost as an aberration to the effort to construct a tower of ivory around rule 85 of the Rules. While the Court of Appeal had always held that a failure to include a signed and dated copy of the order in the record of appeal was fatal, this court effectively disagreed. The judges went out of their way to check the superior court record, and it was quite clear that the learned judge had signed the ruling on the date of its delivery!


The above cases cast a painful light on the rush of our appeal court to strike out appeals by the dozen. No sooner is an advocate on his feet, even before a rush of blood dissolves his pins and needles, than he suffers a mighty tackle from the court. Or even worse, the advocate discovers a fatal procedural defect two days after filing the record of appeal. Will he be allowed the mercy of withdrawing his appeal and constituting another afresh?


‘No!’, according to Mulei v Mutisya (10/6/97). The court did not prevaricate, “As [held] in Ndungu v Wambugu, nothing could have been done while an incompetent appeal was pending.” It quoted, “… there was nothing the applicant could have done. He could not have filed a supplementary record of appeal because the courts rules do not permit that where decrees or orders are concerned. He could not have withdrawn the appeal either because the court has ruled that where an appeal is incurably defective, then there is nothing to withdraw.” Hopefully, the subsequent Legal Notice 11/98, which amended rule 93, will allow the appellant the small mercy of withdrawal of the appeal if all parties consent. Otherwise, he must sit quietly and wait for the slaughter.


Granted the court is the guardian of the rules and cannot allow them to fall into disuse. Granted advocates are the custodians of the law and should not be allowed to treat it with contempt. Yet is justice served by denying appellants the benefit of the general power to amend? Narcissus, a handsome youth in Greek mythology, was so smitten by his own reflection that he pined to death by the waterside. One hopes that the Court of Appeal would not suffer a similar fate as it vigilantly guards rule 85 of the Court of Appeal Rules.


Cases cited Court citation LLR citation


1. AG v Pattni [1999] LLR 934 (CAK)

2. Anjumani v Ali [1998] LLR 868 (CAK)

3. CBA v Ndirangu [1999] LLR 2163 (CAK)

4. Coastal Kenya v Kasiti [1999] LLR 1012 (CAK)

5. Commissioner of VAT v Shah [1999] LLR 3466 (CAK)

6. Delphis Bank v Caneland [1999] LLR 2814 (CAK)

7. Greenfield Investments v Mawji [1997] LLR 589 (CAK)

8. Jirongo v Trust Bank [2000] LLR 3016 (CAK)

9. Karl v Karl [1997] LLR 2803 (CAK)

10. KBL v Kiambu Transport [2000] LLR 2633 (CAK)

11. M’athara v M’athara [1998] LLR 792 (CAK)

12. Macharia v Muigai [1999] LLR 2820 (CAK)

13. Magana Holdings v Njeri [1996] LLR 454 (CAK)

14. Masita v Onduto [2000] LLR 3443 (CAK)

15. Maxwell v Postbank Credit [1999] LLR 2621 (CAK)

16. Mbugua v Mbugua [2000] LLR 2242 (CAK)

17. Mucuha v Ripples [1998] LLR 3014 (CAK)

18. Mulei v Mutisya [1996] LLR 2643 (CAK)

19. Musa v Ereri [1999] LLR 177 (CAK)

20. Mutiso v Mutiso [1998] LLR 778 (CAK)

21. Narok C.C. v Transmara C.C. [1999] LLR 1052 (CAK)

22. Obonyo v Thabiti Insurance [2000] LLR 2269 (CAK)

23. Odera v Machira [1999] LLR 1028 (CAK)

24. Pepco v Carter [1999] LLR 959 (CAK)

25. R v KPTC [1999] LLR 901 (CAK)

26. Shah v Aperit [1999] LLR 1014 (CAK)

27. Shretta v Vadag [2000] LLR 2254 (CAK)

28. Silpack Industries v Kioko [2000] LLR 2250 (CAK)


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