1. A preliminary issue arises which, in my considered opinion, ought to be resolved first before proceeding to the substantive appeal.
2. Upon perusing the record, it is apparent that the appellant filed an incomplete record of appeal. The appellant omitted the respondent’s pleadings filed before the trial court, and critically, the agreement forming the substratum of the dispute. Order 42 Rule 13 (4) of the Civil Procedure Rules requires that the record include, inter alia , the pleadings and all documents put in evidence before the trial court.
3. While the Supreme Court in Bwana Mohamed Bwana vs Silvano Buko Bonaya & 2 Others [2015] eKLR underscored that an incomplete record of appeal may render an appeal incompetent, that principle must be applied contextually. Due regard must be had to whether the omission goes to the root of the appeal or is curable without prejudice to the respondent.
4. This position finds support in Lebo & 331 Others vs Kenya Power & Lighting Ltd. (Civil Appeal (Application) E033 of 2023) [2024] KECA 1518 (KLR) . Faced with a similar situation of an incomplete record of appeal, the Court of Appeal, noting that the appellant had filed an application to salvage the appeal, declined to dismiss the appeal, instead allowing the appellant to prosecute the application to file a supplementary record of appeal. Similarly, in Leiyagu vs Independent Electoral Boundaries Commission & 2 Others (Civil Appeal 18 of 2013) [2013] KECA 282 (KLR) the Court of Appeal underscored that the “26…. pendulums have swung and the courts have shifted towards addressing substantive justice and no longer worship at the altar of technicalities ’.
5. In the present case, the Memorandum of Appeal was filed within time. Although the Record of Appeal is incomplete, the foundational steps for instituting the appeal were complied with. As such, the omission is not an incurable defect and no prejudice has been demonstrated that cannot be remedied by allowing the appellant to regularize the record.
6. Cognizant of this Court’s ultimate duty to uphold justice and disregard technicalities, I am of the considered view that an incomplete record of appeal denies this Court the opportunity to undertake a proper re-evaluation of the evidence. Accordingly, I direct that the appellant files and serves a supplementary record of appeal within 14 days of today’s date, failing which this appeal shall stand dismissed.
7. The matter shall be mentioned before the Deputy Registrar on 13 th August 2026 to confirm compliance and take further directions.
It is so ordered.
2. Upon perusing the record, it is apparent that the appellant filed an incomplete record of appeal. The appellant omitted the respondent’s pleadings filed before the trial court, and critically, the agreement forming the substratum of the dispute. Order 42 Rule 13 (4) of the Civil Procedure Rules requires that the record include, inter alia , the pleadings and all documents put in evidence before the trial court.
3. While the Supreme Court in Bwana Mohamed Bwana vs Silvano Buko Bonaya & 2 Others [2015] eKLR underscored that an incomplete record of appeal may render an appeal incompetent, that principle must be applied contextually. Due regard must be had to whether the omission goes to the root of the appeal or is curable without prejudice to the respondent.
4. This position finds support in Lebo & 331 Others vs Kenya Power & Lighting Ltd. (Civil Appeal (Application) E033 of 2023) [2024] KECA 1518 (KLR) . Faced with a similar situation of an incomplete record of appeal, the Court of Appeal, noting that the appellant had filed an application to salvage the appeal, declined to dismiss the appeal, instead allowing the appellant to prosecute the application to file a supplementary record of appeal. Similarly, in Leiyagu vs Independent Electoral Boundaries Commission & 2 Others (Civil Appeal 18 of 2013) [2013] KECA 282 (KLR) the Court of Appeal underscored that the “26…. pendulums have swung and the courts have shifted towards addressing substantive justice and no longer worship at the altar of technicalities ’.
5. In the present case, the Memorandum of Appeal was filed within time. Although the Record of Appeal is incomplete, the foundational steps for instituting the appeal were complied with. As such, the omission is not an incurable defect and no prejudice has been demonstrated that cannot be remedied by allowing the appellant to regularize the record.
6. Cognizant of this Court’s ultimate duty to uphold justice and disregard technicalities, I am of the considered view that an incomplete record of appeal denies this Court the opportunity to undertake a proper re-evaluation of the evidence. Accordingly, I direct that the appellant files and serves a supplementary record of appeal within 14 days of today’s date, failing which this appeal shall stand dismissed.
7. The matter shall be mentioned before the Deputy Registrar on 13 th August 2026 to confirm compliance and take further directions.
It is so ordered.