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 www.lawafrica.com.
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 court's 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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