https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1544

Attorney General v Mwanyasi & 9 others (Civil Appeal (Application) E650 of 2021) [2026] KECA 1544 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1544 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) E650 of 2021 SG Kairu, GV Odunga & HI Ong'udi, JJA July 31, 2026 Between The Hon Attorney General Appellant and Musa Mbwagwa Mwanyasi 1st Respondent Samuel Sanga Mwalimu Elijah 2nd Respondent Erastus Njoroge Chuthu 3rd Respondent William Mwangi Ngige 4th Respondent Mbwana Bakari Mwanyota 5th Respondent Francis Ngugi Mwariri 6th Respondent John Nyale Kahi 7th Respondent Denis Mtimba Ngala 8th Respondent John Kipchirchir Birgen 9th Respondent Esau Kiora Mjomba 10th Respondent (Being an application to strike out the Record of Appeal herein dated 11th November, 2021 in Court of Appeal at Nairobi, Civil Appeal No. E650 of 2021) Ruling 1.The applicants who are the respondents in this appeal filed the Notice of Motion dated 13th January 2022 under Rules 42, 84 and 87 of the Court of Rules, 2010 seeking the following orders:i.That the record of appeal dated 11th November 2021 in Civil Appeal No. 650 of 2021 pending before this honourable court be struck out for want of inclusion of mandatory documents particularly the decree of the judgment appealed against and written submissions of the respondent/ applicants filed in the superior court.ii.That costs of the application be borne by the appellant/respondent. 2.The application is supported by the grounds on its face and the supporting affidavit sworn by Mbugua Mureithi advocate, on 13th January 2022. Counsel averred that he represented the applicants in the petition before the High Court whose judgment is being appealed against. He deponed to having been served with the record of appeal via email on 25th November 2021. Upon perusal of the index of the record of appeal and the record of appeal itself he noted that both did not contain a decree of the judgment of the High Court sought to be appealed against. The applicants written submissions before the High Court were also omitted. 3.He further averred that all the post judgment steps taken by the respondent do not include extraction of or application for the decree arising from the judgment sought to be appealed against. He thus deponed that failure to include the above mentioned documents in the record of appeal as required under Rule 87 (1) (c) and (h) of this Court’s Rules rendered the record of appeal and the appeal fatally incompetent, defective and legally invalid. 4.The respondent responded by filing a replying affidavit sworn on 24th October, 2022 by L.A Goro the legal officer with the Kenya Defence Forces. She averred that the respondent filed a draft decree for the Deputy Registrar’s approval vide an email dated 5th November 2021 to which no response had been received as at the time of filing the record of appeal. That the record of appeal was filed without the decree in order to meet the requisite timelines. She annexed a copy of the directions issued by the Deputy Registrar, and stated that the issue has been followed up subsequently. 5.She further deponed that the omission of a copy of the decree in the record of appeal was inadvertent and should not be a cause for rendering the entire record fatally incompetent or defective as alleged by the applicants. She requested the Court to allow the respondent to file a fresh record of appeal containing a copy of the decree once received before the hearing. That the issue raised by the applicants is merely technical yet the appeal raises very material issues of law. Further, that the respondent stands to suffer irreparable injustice if denied a chance to rectify the record of appeal. She finally averred that the respondent had filed written submissions as contained at page 193 of the record of appeal. 6.When the application came before this court for hearing learned counsel Mr. Mbugua Mureithi appeared for the applicants while learned counsel M/S Goro appeared for the respondent. 7.Both counsel highlighted their submissions in the plenary.Mr. Mbugua Mureithi relied on his written submissions dated 19th March 2026 and submitted that the applicants sought to have the appeal struck out on the first ground that the respondent omitted to file primary/mandatory documents without leave of this Court as provided for under Rule 88 of the 2010 Rules. The said documents are the decree of the High Court sought to be appealed against and the written submissions of the applicants filed in the High Court. On this reference was made to Rule 87(1) of the 2010 Rules of this Court. He added that the omission of the decree and submissions of the applicants in the record of appeal is conceded by L.A. Goro in her replying affidavit and submissions dated 9th June 2025. 8.To support this argument learned counsel referred to the Supreme Court case of Bwana Mohamed Bwana Vs. Silvano Buko Bonaya & 2 Others [2015] KESC & (KLR) and the Court of Appeal case of Salama Beach Hotel Limited & 4 Others Vs. Kenyarini & Associates Advocates & 4 Others [2016] eKLR among others. 9.On the second ground, learned counsel submitted that the supplementary record of appeal was not properly before the Court and is also for striking out. The reason he gave in support was that the respondent was in breach of Rule 88 of the 2010 Rules which gave him a window of 15 days after filing the record of appeal to file a supplementary record of appeal without leave. He however filed the said supplementary record of appeal one year and four months late without leave. This he argued was irregular and illegitimate and the said record of appeal should be struck out. Reliance was placed on the case of Floris Pierro & Another Vs. Giancarlo Falasconi (as the administrator of the estate of Santuzza [2014] eKLR. 10.Learned counsel further added that besides filing the supplementary record of appeal without leave, the said record was filed without the applicants’ submissions in the High Court. On this he referred to the case of Bwana Mohamed Bwana VS. Silvano Buko Bonyaya & 2 Others (supra). 11.Thirdly, learned counsel submitted that there was no letter or email filed in the record of appeal to confirm the request for the decree by the respondent. That the said request was only made after filing of the record of appeal. He urged the Court to allow the application, strike out the appeal and supplementary record of appeal with costs. 12.Learned counsel M/S Goro for the respondent relied on her replying affidavit dated 24th October 2022 and her submissions dated 23rd May 2025. She argued that the respondent filed their draft decree for approval by the Deputy Registrar via email dated 5th November 2021 but there was no response as at the time of filing the record of appeal. That this was followed up severally. Learned counsel contended that this omission was inadvertent and should not be a cause to render the entire record fatally incompetent. Further, that their failure to include the applicants submissions in the record of appeal was not intentional. 13.Learned counsel further submitted that the decree was finally issued on 3rd March 2023, certified on 10th March 2023 and a supplementary affidavit dated 13th March 2023 filed in compliance with Rule 89 (1) (h) of the Court of Appeal Rules. She admitted that the applicants’ submissions were left out of the record of appeal,but contended that this was not one of the documents required for filing. All this she said was not done deliberately. It is her submission that they did not apply for leave since there was already a pending application by the applicants. 14.Counsel thus urged the Court to act under the wide powers in Article 159 of the Constitution and Rule 4 of the Court’s Rules, and not dismiss the application. 15.We have carefully considered the Notice of Motion, both affidavits and submissions, cited authorities and the law, and the main issue we find falling for determination is whether there is merit in the said Notice of Motion. 16.The application was filed under Rules 42, 84 and 87 of the Court of Appeal Rules 2010 which are now Rules 44, 86 and 89 of the Court of Appeal Rules 2022 respectively. 17.The record of appeal herein is dated 11th November 2021. It is not disputed that the said record does not contain the decree of the impugned judgment. This is confirmed by both counsel plus the index of the filed items at pages 6 to 8 of the record of appeal. In her replying affidavit L.A. Goro on behalf of the respondent explained the several efforts made to have the draft decree signed by the Deputy Registrar. There is evidence (LAG 4) to support that claim. She further explained that the respondent’s filing of the record of appeal minus the decree was to comply with the timelines for filing the record of appeal. 18.On the other hand, the applicants have argued that the supplementary record of appeal was filed without leave of the court. To this the respondent argued that leave was not sought since the applicants had already filed the present application before the filing of the supplementary record of appeal. 19.Rule 88 of the Court of Appeal Rules 2010 provided as follows:“Where a document referred to in Rule 87 (1) and (2) is omitted from the record of appeal, the appellant may within fifteen days of lodging the record of appeal, without leave, include the document in a supplementary record of appeal filed under Rule 92 (3) and thereafter with leave of the Deputy Registrar on application.”This is found in Rule 90 of the Court of Appeal Rules 2022. 20.The above Rule gave the respondent a window of 15 days after lodging the record of appeal to file a supplementary record of appeal to include an omitted document. The action in 15 days does not require the leave of the court. However, after the expiry of the 15 days an affected party is required to seek the leave of the Deputy Registrar which is another window. The respondent did not take advantage of the two opportunities to file the omitted document/documents by seeking leave to do so. Instead, he filed the supplementary record of appeal just like any other document. Due process must be followed and the applicants cannot be faulted for filing the application dated 13th January 2022. The fact that the applicants had filed the present application did not bar the respondent from complying with Rule 88 of the Court of Appeal Rules 2010 Rule 90 of the Court of Appeal Rules 2022. 21.Rule 94 of the Court of Appeal Rules 2022 (Rule 92 of the 2010 Rules) provides that if a respondent is of the opinion that the record of appeal is defective or insufficient for the purposes of the respondent’s case, he or she may lodge a supplementary record of appeal containing copies of any further documents or additional parts of the documents which are in his opinion required for the proper determination of the appeal. Under Rule 94 (3), the appellant similarly may lodge a supplementary record of appeal. Whereas the appellant ought perhaps, for good order, to have sought leave under Rule 88. In the circumstances of this case no prejudice has been demonstrated to warrant the striking out of the appeal. 22.Consequently, the notice of motion dated 13th January 2022 is declined. We make no orders as to costs. 23.Orders accordingly. DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 31ST DAY OF JULY, 2026.S. GATEMBU KAIRU, FCIArb, C. Arb...................... JUDGE OF APPEALG.V. ODUNGA...................... JUDGE OF APPEALH.I. ONG’UDI...................... JUDGE OF APPEALI certify that this is the true copy of the originalsignedDEPUTY REGISTRAR