INTRODUCTION AND BACKGROUND
1. The Appellant/Applicant has moved this Court by way of a Notice of Motion dated 24 th July 2025, seeking the following orders:
i. That this Honourable Court be pleased to review, vary and/or set aside the Ruling and Orders delivered on 27 th June 2025 by the Honourable Lady Justice Helene Namisi, which struck out the Appellant’s Appeal for want of a complete Record of Appeal.
ii. That the Appeal herein be reinstated for hearing and determination on its merits.
iii. That the existing Record of Appeal be deemed substantially compliant, or in the alternative, the Appellant be granted leave to file a Supplementary Record of Appeal incorporating the Co-operative Tribunal’s Judgment and Decree upon receipt.
iv. That the costs orders made against the Appellant be revoked.
v. That the costs of this Application be awarded to the Applicant.
2. The Application is supported by the Affidavit of Joseph Rwamba Mwai, the Appellant/Applicant herein, sworn on 24 th July 2025. The Applicant deposes that the Appeal arises from a Judgment and Decree of the Co-operative Tribunal at Nairobi delivered on 26 th January 2023 in Tribunal Case No. E453 or 412 of 2022. He states that the dispute concerned a loan taken by Paul Ndung’u from the Respondent, for which he was a guarantor, and that although the Tribunal entered Default Judgment for Kshs. 100,610.53, it failed to determine other pleaded issues, including breach of fiduciary duty, breach of contract, compound interest, dividends and disgorgement.
3. The Applicant further deposes that he filed the Appeal on 24 th February 2023 and that the matter was mentioned before various Judicial Officers on fourteen occasions before being allocated to Lady Justice Helene Namisi. He states that throughout the proceedings he consistently raised the fact that the Co-operative Tribunal had not supplied its Judgment, Decree and Proceedings despite repeated requests. He maintains that the Tribunal’s failure to provide the documents was beyond his control and that the Court was aware of the backlog at the Tribunal.
APPELLANT/APPLICANT’S SUBMISSIONS
4. The Appellant submits that the Application is unopposed, contending that the Respondent failed to file a Replying Affidavit within the fourteen days directed by the Court and did not seek leave to file one out of time. Relying on Order 51 Rule 14(4) of the Civil Procedure Rules and Konchellah v Sunkuli & 2 Others [2018] KESC 58 (KLR) , he submits that a Replying Affidavit constitutes the foundation of a respondent’s case and, in its absence, the Application may properly be treated as unopposed.
5. He further relies on Republic v Baringo County Government & 2 Others; KTK Advocates (Ex parte Applicant) [2025] KEHC 4309 (KLR) and Nancy Kamene Maingi & Another v Teresiah K. Mutuku & 2 Others [2011] KEHC 882 (KLR) on the consequences of filing a replying affidavit out of time without leave. He also cites Waweru & 2 Others v Maina [2026] KECA 382 (KLR) and Kochale & 5 Others v Lake Turkana Wind Power Ltd & 4 Others [2023] KEELC 18 (KLR) on the requirement for a plausible and reasonable explanation where a party seeks indulgence for procedural default.
6. On the jurisdiction for review, the Appellant submits that the Application is properly grounded on Section 80 of the Civil Procedure Act and Order 45 Rules 1, 2, 3 and 5 of the Civil Procedure Rules. Relying on National Bank of Kenya Ltd v Njau [1997] KECA 71 (KLR) , he submits that review may be granted where there is an apparent error or omission on the record which is self-evident and does not require elaborate argument.
7. He identifies three concurrent grounds for review: an error apparent on the face of the record, the Court’s failure to consider the prior admission order of Justice Alfred Mabeya, and matters evident from the Court record itself.
8. The Appellant submits that the admission of the Appeal by Justice Alfred Mabeya on 23 rd September 2024 constituted an express judicial determination that the Appeal was ready for hearing on the existing record. He argues that the Ruling of 27 th June 2025 did not address that order and that striking out an Appeal previously admitted by a coordinate Judge without considering or overruling the admission constituted an error apparent on the face of the record.
9. The Appellant further submits that the Court failed to apply the proviso to Order 42 Rule 13(4), which permits the Court, where appropriate, to dispense with production of particular documents. He contends that the Tribunal’s failure to provide the Judgment and Decree was beyond his control despite repeated requests by himself, the Respondent and the Court. He argues that the Tribunal’s backlog, the RRI directions and the prior direction that the Appeal proceed on the High Court record demonstrated that the proviso was applicable.
10. The Appellant distinguishes Bwana Mohamed Bwana v Silvano Buko Bonaya & 2 Others [2014] eKLR , relied upon in striking out the Appeal, arguing that unlike in that case, he had filed a Record of Appeal and made sustained efforts to obtain the outstanding Tribunal documents.
11. He further submits that the Appeal had been mentioned severally, subjected to the RRI process and admitted for hearing, and that the record demonstrates that both parties had sought the missing documents from the Tribunal, whose backlog had been acknowledged by the Deputy Registrar. He therefore contends that penalising him for documents beyond his control would violate his Article 50(1) right to a fair hearing.
12. On substantive justice, the Appellant relies on Articles 50(1) and 159(2)(d) of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act, and Odinga v Independent Electoral and Boundaries Commission & 3 Others [2013] KESC 2 (KLR) , Benjoh Amalgamated Ltd & Another v Kenya Commercial Bank Ltd [2014] KECA 872 (KLR) and Githere v Kimungu [1976–1985] EA 101 , submitting that procedural rules should facilitate, rather than defeat, substantive justice.
13. He further relies on Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 Others [2013] KECA 113 (KLR) , Anne Jepkemboi Ngeny v Joseph Tireito & Another [2021] KECA 464 (KLR) and Odera t/a A.J. Odera & Associates v Machira t/a Machira & Co Advocates [2013] KECA 208 (KLR) on the overriding objective, and Galaxy Paints Company Ltd v Falcon Guards Ltd [2000] KECA 215 (KLR) on the duty to determine all issues arising from the pleadings.
14. He consequently urges the Court to review and set aside the Ruling, reinstate the Appeal, deem the existing Record of Appeal substantially compliant or grant leave to file a Supplementary Record, revoke the costs orders and award him the costs of the Application.
RESPONDENT’S SUBMISSIONS
15. The Respondent has not filed a Replying Affidavit or written submissions in opposition to the Application. The Appellant consequently maintains that the Application remains uncontroverted both in fact and in law.
ISSUE FOR DETERMINATION
The singular issue for determination is whether the Applicant has established sufficient grounds to warrant the review, variation and/or setting aside of the Ruling delivered on 27 th June 2025 striking out the Appeal for want of a complete Record of Appeal.
ANALYSIS AND DETERMINATION
16. The Application principally seeks the review, variation and/or setting aside of the Ruling delivered on 27 th June 2025, by which the Appeal was struck out for want of a complete Record of Appeal. The jurisdiction of the Court to review its orders is founded on Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules.
17. Section 80 provides as follows:-
“Any person who considers himself aggrieved—
(a)by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
(b)by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”
Order 45 Rules 1 and 3 as are relevant in this instant application provide: -
“1. Any person considering himself aggrieved—
(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(b)by a decree or order from which no appeal is hereby allowed,
and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.
3. i. Where it appears to the court that there is not sufficient ground for a review, it shall dismiss the application.
ii. Where the court is of opinion that the application for review should be granted, it shall grant the same:
Provided that no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge, or could not be adduced by him when the decree or order was passed or made without strict proof of such allegation.”
18. The principles governing review are have been governed by a plethora of cases. In National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR , the Court of Appeal held that: -
“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law.”
19. The Applicant's case, however, is premised principally on the circumstances surrounding his inability to obtain the Judgment, Decree and proceedings of the Co-operative Tribunal. He maintains that he made repeated efforts to obtain the documents, that the Tribunal's backlog was acknowledged, and that the Appeal had previously been admitted for hearing and subjected to the RRI process. He therefore contends that the omission from the Record was not attributable to indolence or disregard of the Court's directions.
20. I have considered the reasoning in the impugned Ruling. The Court correctly recognised the importance of a complete Record of Appeal and relied on Order 42 Rule 13(4) and Bwana Mohamed Bwana v Silvano Buko Bonaya & 2 Others [2014] eKLR . In Bwana Mohamed Bwana , the Supreme Court emphasised that a Record of Appeal is the complete bundle of documents necessary to enable an appellate court to determine the appeal. The requirement for a proper record is therefore substantive and cannot simply be disregarded as a technicality.
21. That, however, is not the end of the matter. The question before me is whether, in the circumstances demonstrated by the Applicant, the drastic consequence of striking out the Appeal ought to be maintained.
22. The Courts have, in appropriate circumstances, reinstated appeals where procedural non-compliance resulted from circumstances beyond the appellant's control. In Samuel Njau & Another v Pauline Nyawira Gitonga [2016] eKLR , the Court found that a grave procedural mistake had occurred in relation to the Record of Appeal and held that, in the interests of justice, the mistake ought to be rectified. The Court consequently set aside the orders striking out the appeal and reinstated it, while directing the appellants to file the Record within 21 days, failing which the appeal would stand dismissed.
23. In Hamida Yaroi Shek Nuri v Faith Tumaini Kombe & 2 Others [2019] KESC 42 (KLR) , the Supreme court considered the circumstances of incomplete records in the record of appeal and held that the same need not be fatal where the omission was satisfactorily explained and which can be cured. The court held inter alia: -
“For if the law contemplates that such an omitted document may be filed later, the same law cannot be said to render a Record of Appeal with that omission outrightly fatal. However we hasten to add that where a required document lacks in the Record of Appeal, devoid of a sufficient explanation for the omission, is a ground for the striking out of that Record of Appeal.”
24. While the above authority dealt with a situation where there was a delay in the court of appeal issuing typed proceedings, the appellant showed that she promptly requested for the typed proceedings to enable her lodge the appeal, which request was not heeded.
25. These authorities demonstrate that the requirement for a complete record does not necessarily mean that striking out an appeal is the only permissible consequence in every case. The Court retains a discretion, where sufficient circumstances are demonstrated, to permit a party to regularise the record and have the dispute determined on its merits.
26. The Court's discretion to strike out an appeal for an incomplete Record is not necessarily irreversible. In Frodak Kenya Limited v Makunda (Appeal E005 of 2023) [2024] KEELRC 1689 (KLR) , the appellant's appeal had been struck out for want of certified copies of the proceedings, judgment and decree. Upon application for review and reinstatement, the Court set aside the striking-out order, reinstated the appeal and granted leave to file a supplementary record containing the omitted documents, while compensating the respondent for any prejudice through throw-away costs.
27. In the present case, the Applicant has placed before the Court evidence of his efforts to obtain the outstanding Tribunal documents and has explained the circumstances in which they remained unavailable. I am therefore not persuaded that his case amounts merely to an attempt to circumvent the mandatory requirements of Order 42 Rule 13(4). Rather, he seeks an opportunity to comply with those requirements in circumstances which he says were substantially occasioned by the failure of the Tribunal to avail the necessary documents.
28. I also take into account the procedural history of the Appeal. The Applicant states, and the material before the Court demonstrates, that the Appeal had been mentioned on numerous occasions, subjected to the RRI process and ultimately admitted for hearing. While admission of an appeal does not cure an incomplete Record, it is relevant in assessing whether the Applicant has demonstrated a genuine intention to prosecute the Appeal or whether the omission was simply the result of indolence.
29. The Court must also balance the requirement for procedural compliance with the constitutional imperative of substantive justice. Article 159(2)(d) of the Constitution requires justice to be administered without undue regard to procedural technicalities, while Sections 1A and 1B of the Civil Procedure Act embody the overriding objective of facilitating the just, expeditious, proportionate and affordable resolution of disputes. These provisions do not permit the Court to disregard mandatory rules, but they require the Court to consider whether a procedural defect can be cured without unnecessarily terminating a substantive dispute.
30. In the case of Peter Obwogo O & 2 others vs H O Suing as Next Friend of P O (Minor) & Another [2017] eKLR , Eldoret Civil Appeal (Application) No. 8 of 2017 the Court held;
“Whereas the rules for procedure are handmaidens of justice and play an important role in the administration of justice, they should not, in appropriate cases, impede the administration of substantial justice. Article 159(2) (d) of the Constitution of Kenya 2010, now requires that:
“justice shall be administered without undue regard to procedural technicalities.” The Court has a discretion under Rule 84 to strike out a notice of appeal or appeal where an essential step has not been taken in the proceeding or has not been taken within a prescribed time. However, the discretion should be exercised judicially having regard to all the circumstances of the case.”
31. Similarly, in Intercounties Importers and Exporters v Teleposta Pension Scheme Registered Trustees & 5 others (2021) eKLR , the Court of Appeal held that: -
“In our view, striking out this appeal on grounds that the record of appeal as filed is incomplete, while the reason for the incompleteness is the unavailability of the records will not serve the ends of justice.”
32. In the circumstances of this matter, I am satisfied that the Applicant has demonstrated sufficient reason for the Court to revisit the earlier order. Of particular significance are the Applicant's demonstrated efforts to obtain the missing Tribunal documents, the circumstances surrounding their non-availability, the procedural history of the Appeal and the fact that the defect is capable of being cured by filing a Supplementary Record.
33. I am therefore persuaded that the interests of justice would be better served by allowing the Applicant an opportunity to regularise the Record rather than permanently shutting out the Appeal. This approach does not render the requirements of Order 42 Rule 13(4) nugatory. On the contrary, the reinstatement should be conditional upon the Applicant filing the outstanding documents within a specified period.
DISPOSITION AND ORDERS
34. In the result, I find merit in the Notice of Motion dated 24 th July 2025 and accordingly make the following orders:
i. The Ruling and consequential Orders of this Court delivered on 27 th June 2025 striking out Appeal No. E034 of 2023 are hereby reviewed and set aside.
ii. The Appeal herein is hereby reinstated for hearing and determination on its merits.
iii. The matter is transferred to the Tribunals Appeals Division of the High Court as established vide Gazette Notice No. 10417 dated 26 th June 2026 and published on 10 th July 2026.
iv. The Appellant is granted leave to file and serve a Supplementary Record of Appeal incorporating the Judgment, Decree and Proceedings of the Co-operative Tribunal within sixty (60) days from the date hereof.
v. The Applicant shall pay the Respondent throw-away costs of Kshs. 50,000/= within thirty (30) days of this ruling.
vi. The costs of the Application shall abide the outcome of the Appeal.
Orders accordingly.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 17 th DAY OF SEPTEMBER 2026.
B.W. MURUNGA
JUDGE
Delivered on virtual platform in the presence of:
…………………… for the Applicant
…………………… for the Respondent
Kevin Babu - Court Assistant
1. The Appellant/Applicant has moved this Court by way of a Notice of Motion dated 24 th July 2025, seeking the following orders:
i. That this Honourable Court be pleased to review, vary and/or set aside the Ruling and Orders delivered on 27 th June 2025 by the Honourable Lady Justice Helene Namisi, which struck out the Appellant’s Appeal for want of a complete Record of Appeal.
ii. That the Appeal herein be reinstated for hearing and determination on its merits.
iii. That the existing Record of Appeal be deemed substantially compliant, or in the alternative, the Appellant be granted leave to file a Supplementary Record of Appeal incorporating the Co-operative Tribunal’s Judgment and Decree upon receipt.
iv. That the costs orders made against the Appellant be revoked.
v. That the costs of this Application be awarded to the Applicant.
2. The Application is supported by the Affidavit of Joseph Rwamba Mwai, the Appellant/Applicant herein, sworn on 24 th July 2025. The Applicant deposes that the Appeal arises from a Judgment and Decree of the Co-operative Tribunal at Nairobi delivered on 26 th January 2023 in Tribunal Case No. E453 or 412 of 2022. He states that the dispute concerned a loan taken by Paul Ndung’u from the Respondent, for which he was a guarantor, and that although the Tribunal entered Default Judgment for Kshs. 100,610.53, it failed to determine other pleaded issues, including breach of fiduciary duty, breach of contract, compound interest, dividends and disgorgement.
3. The Applicant further deposes that he filed the Appeal on 24 th February 2023 and that the matter was mentioned before various Judicial Officers on fourteen occasions before being allocated to Lady Justice Helene Namisi. He states that throughout the proceedings he consistently raised the fact that the Co-operative Tribunal had not supplied its Judgment, Decree and Proceedings despite repeated requests. He maintains that the Tribunal’s failure to provide the documents was beyond his control and that the Court was aware of the backlog at the Tribunal.
APPELLANT/APPLICANT’S SUBMISSIONS
4. The Appellant submits that the Application is unopposed, contending that the Respondent failed to file a Replying Affidavit within the fourteen days directed by the Court and did not seek leave to file one out of time. Relying on Order 51 Rule 14(4) of the Civil Procedure Rules and Konchellah v Sunkuli & 2 Others [2018] KESC 58 (KLR) , he submits that a Replying Affidavit constitutes the foundation of a respondent’s case and, in its absence, the Application may properly be treated as unopposed.
5. He further relies on Republic v Baringo County Government & 2 Others; KTK Advocates (Ex parte Applicant) [2025] KEHC 4309 (KLR) and Nancy Kamene Maingi & Another v Teresiah K. Mutuku & 2 Others [2011] KEHC 882 (KLR) on the consequences of filing a replying affidavit out of time without leave. He also cites Waweru & 2 Others v Maina [2026] KECA 382 (KLR) and Kochale & 5 Others v Lake Turkana Wind Power Ltd & 4 Others [2023] KEELC 18 (KLR) on the requirement for a plausible and reasonable explanation where a party seeks indulgence for procedural default.
6. On the jurisdiction for review, the Appellant submits that the Application is properly grounded on Section 80 of the Civil Procedure Act and Order 45 Rules 1, 2, 3 and 5 of the Civil Procedure Rules. Relying on National Bank of Kenya Ltd v Njau [1997] KECA 71 (KLR) , he submits that review may be granted where there is an apparent error or omission on the record which is self-evident and does not require elaborate argument.
7. He identifies three concurrent grounds for review: an error apparent on the face of the record, the Court’s failure to consider the prior admission order of Justice Alfred Mabeya, and matters evident from the Court record itself.
8. The Appellant submits that the admission of the Appeal by Justice Alfred Mabeya on 23 rd September 2024 constituted an express judicial determination that the Appeal was ready for hearing on the existing record. He argues that the Ruling of 27 th June 2025 did not address that order and that striking out an Appeal previously admitted by a coordinate Judge without considering or overruling the admission constituted an error apparent on the face of the record.
9. The Appellant further submits that the Court failed to apply the proviso to Order 42 Rule 13(4), which permits the Court, where appropriate, to dispense with production of particular documents. He contends that the Tribunal’s failure to provide the Judgment and Decree was beyond his control despite repeated requests by himself, the Respondent and the Court. He argues that the Tribunal’s backlog, the RRI directions and the prior direction that the Appeal proceed on the High Court record demonstrated that the proviso was applicable.
10. The Appellant distinguishes Bwana Mohamed Bwana v Silvano Buko Bonaya & 2 Others [2014] eKLR , relied upon in striking out the Appeal, arguing that unlike in that case, he had filed a Record of Appeal and made sustained efforts to obtain the outstanding Tribunal documents.
11. He further submits that the Appeal had been mentioned severally, subjected to the RRI process and admitted for hearing, and that the record demonstrates that both parties had sought the missing documents from the Tribunal, whose backlog had been acknowledged by the Deputy Registrar. He therefore contends that penalising him for documents beyond his control would violate his Article 50(1) right to a fair hearing.
12. On substantive justice, the Appellant relies on Articles 50(1) and 159(2)(d) of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act, and Odinga v Independent Electoral and Boundaries Commission & 3 Others [2013] KESC 2 (KLR) , Benjoh Amalgamated Ltd & Another v Kenya Commercial Bank Ltd [2014] KECA 872 (KLR) and Githere v Kimungu [1976–1985] EA 101 , submitting that procedural rules should facilitate, rather than defeat, substantive justice.
13. He further relies on Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 Others [2013] KECA 113 (KLR) , Anne Jepkemboi Ngeny v Joseph Tireito & Another [2021] KECA 464 (KLR) and Odera t/a A.J. Odera & Associates v Machira t/a Machira & Co Advocates [2013] KECA 208 (KLR) on the overriding objective, and Galaxy Paints Company Ltd v Falcon Guards Ltd [2000] KECA 215 (KLR) on the duty to determine all issues arising from the pleadings.
14. He consequently urges the Court to review and set aside the Ruling, reinstate the Appeal, deem the existing Record of Appeal substantially compliant or grant leave to file a Supplementary Record, revoke the costs orders and award him the costs of the Application.
RESPONDENT’S SUBMISSIONS
15. The Respondent has not filed a Replying Affidavit or written submissions in opposition to the Application. The Appellant consequently maintains that the Application remains uncontroverted both in fact and in law.
ISSUE FOR DETERMINATION
The singular issue for determination is whether the Applicant has established sufficient grounds to warrant the review, variation and/or setting aside of the Ruling delivered on 27 th June 2025 striking out the Appeal for want of a complete Record of Appeal.
ANALYSIS AND DETERMINATION
16. The Application principally seeks the review, variation and/or setting aside of the Ruling delivered on 27 th June 2025, by which the Appeal was struck out for want of a complete Record of Appeal. The jurisdiction of the Court to review its orders is founded on Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules.
17. Section 80 provides as follows:-
“Any person who considers himself aggrieved—
(a)by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
(b)by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”
Order 45 Rules 1 and 3 as are relevant in this instant application provide: -
“1. Any person considering himself aggrieved—
(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(b)by a decree or order from which no appeal is hereby allowed,
and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.
3. i. Where it appears to the court that there is not sufficient ground for a review, it shall dismiss the application.
ii. Where the court is of opinion that the application for review should be granted, it shall grant the same:
Provided that no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge, or could not be adduced by him when the decree or order was passed or made without strict proof of such allegation.”
18. The principles governing review are have been governed by a plethora of cases. In National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR , the Court of Appeal held that: -
“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law.”
19. The Applicant's case, however, is premised principally on the circumstances surrounding his inability to obtain the Judgment, Decree and proceedings of the Co-operative Tribunal. He maintains that he made repeated efforts to obtain the documents, that the Tribunal's backlog was acknowledged, and that the Appeal had previously been admitted for hearing and subjected to the RRI process. He therefore contends that the omission from the Record was not attributable to indolence or disregard of the Court's directions.
20. I have considered the reasoning in the impugned Ruling. The Court correctly recognised the importance of a complete Record of Appeal and relied on Order 42 Rule 13(4) and Bwana Mohamed Bwana v Silvano Buko Bonaya & 2 Others [2014] eKLR . In Bwana Mohamed Bwana , the Supreme Court emphasised that a Record of Appeal is the complete bundle of documents necessary to enable an appellate court to determine the appeal. The requirement for a proper record is therefore substantive and cannot simply be disregarded as a technicality.
21. That, however, is not the end of the matter. The question before me is whether, in the circumstances demonstrated by the Applicant, the drastic consequence of striking out the Appeal ought to be maintained.
22. The Courts have, in appropriate circumstances, reinstated appeals where procedural non-compliance resulted from circumstances beyond the appellant's control. In Samuel Njau & Another v Pauline Nyawira Gitonga [2016] eKLR , the Court found that a grave procedural mistake had occurred in relation to the Record of Appeal and held that, in the interests of justice, the mistake ought to be rectified. The Court consequently set aside the orders striking out the appeal and reinstated it, while directing the appellants to file the Record within 21 days, failing which the appeal would stand dismissed.
23. In Hamida Yaroi Shek Nuri v Faith Tumaini Kombe & 2 Others [2019] KESC 42 (KLR) , the Supreme court considered the circumstances of incomplete records in the record of appeal and held that the same need not be fatal where the omission was satisfactorily explained and which can be cured. The court held inter alia: -
“For if the law contemplates that such an omitted document may be filed later, the same law cannot be said to render a Record of Appeal with that omission outrightly fatal. However we hasten to add that where a required document lacks in the Record of Appeal, devoid of a sufficient explanation for the omission, is a ground for the striking out of that Record of Appeal.”
24. While the above authority dealt with a situation where there was a delay in the court of appeal issuing typed proceedings, the appellant showed that she promptly requested for the typed proceedings to enable her lodge the appeal, which request was not heeded.
25. These authorities demonstrate that the requirement for a complete record does not necessarily mean that striking out an appeal is the only permissible consequence in every case. The Court retains a discretion, where sufficient circumstances are demonstrated, to permit a party to regularise the record and have the dispute determined on its merits.
26. The Court's discretion to strike out an appeal for an incomplete Record is not necessarily irreversible. In Frodak Kenya Limited v Makunda (Appeal E005 of 2023) [2024] KEELRC 1689 (KLR) , the appellant's appeal had been struck out for want of certified copies of the proceedings, judgment and decree. Upon application for review and reinstatement, the Court set aside the striking-out order, reinstated the appeal and granted leave to file a supplementary record containing the omitted documents, while compensating the respondent for any prejudice through throw-away costs.
27. In the present case, the Applicant has placed before the Court evidence of his efforts to obtain the outstanding Tribunal documents and has explained the circumstances in which they remained unavailable. I am therefore not persuaded that his case amounts merely to an attempt to circumvent the mandatory requirements of Order 42 Rule 13(4). Rather, he seeks an opportunity to comply with those requirements in circumstances which he says were substantially occasioned by the failure of the Tribunal to avail the necessary documents.
28. I also take into account the procedural history of the Appeal. The Applicant states, and the material before the Court demonstrates, that the Appeal had been mentioned on numerous occasions, subjected to the RRI process and ultimately admitted for hearing. While admission of an appeal does not cure an incomplete Record, it is relevant in assessing whether the Applicant has demonstrated a genuine intention to prosecute the Appeal or whether the omission was simply the result of indolence.
29. The Court must also balance the requirement for procedural compliance with the constitutional imperative of substantive justice. Article 159(2)(d) of the Constitution requires justice to be administered without undue regard to procedural technicalities, while Sections 1A and 1B of the Civil Procedure Act embody the overriding objective of facilitating the just, expeditious, proportionate and affordable resolution of disputes. These provisions do not permit the Court to disregard mandatory rules, but they require the Court to consider whether a procedural defect can be cured without unnecessarily terminating a substantive dispute.
30. In the case of Peter Obwogo O & 2 others vs H O Suing as Next Friend of P O (Minor) & Another [2017] eKLR , Eldoret Civil Appeal (Application) No. 8 of 2017 the Court held;
“Whereas the rules for procedure are handmaidens of justice and play an important role in the administration of justice, they should not, in appropriate cases, impede the administration of substantial justice. Article 159(2) (d) of the Constitution of Kenya 2010, now requires that:
“justice shall be administered without undue regard to procedural technicalities.” The Court has a discretion under Rule 84 to strike out a notice of appeal or appeal where an essential step has not been taken in the proceeding or has not been taken within a prescribed time. However, the discretion should be exercised judicially having regard to all the circumstances of the case.”
31. Similarly, in Intercounties Importers and Exporters v Teleposta Pension Scheme Registered Trustees & 5 others (2021) eKLR , the Court of Appeal held that: -
“In our view, striking out this appeal on grounds that the record of appeal as filed is incomplete, while the reason for the incompleteness is the unavailability of the records will not serve the ends of justice.”
32. In the circumstances of this matter, I am satisfied that the Applicant has demonstrated sufficient reason for the Court to revisit the earlier order. Of particular significance are the Applicant's demonstrated efforts to obtain the missing Tribunal documents, the circumstances surrounding their non-availability, the procedural history of the Appeal and the fact that the defect is capable of being cured by filing a Supplementary Record.
33. I am therefore persuaded that the interests of justice would be better served by allowing the Applicant an opportunity to regularise the Record rather than permanently shutting out the Appeal. This approach does not render the requirements of Order 42 Rule 13(4) nugatory. On the contrary, the reinstatement should be conditional upon the Applicant filing the outstanding documents within a specified period.
DISPOSITION AND ORDERS
34. In the result, I find merit in the Notice of Motion dated 24 th July 2025 and accordingly make the following orders:
i. The Ruling and consequential Orders of this Court delivered on 27 th June 2025 striking out Appeal No. E034 of 2023 are hereby reviewed and set aside.
ii. The Appeal herein is hereby reinstated for hearing and determination on its merits.
iii. The matter is transferred to the Tribunals Appeals Division of the High Court as established vide Gazette Notice No. 10417 dated 26 th June 2026 and published on 10 th July 2026.
iv. The Appellant is granted leave to file and serve a Supplementary Record of Appeal incorporating the Judgment, Decree and Proceedings of the Co-operative Tribunal within sixty (60) days from the date hereof.
v. The Applicant shall pay the Respondent throw-away costs of Kshs. 50,000/= within thirty (30) days of this ruling.
vi. The costs of the Application shall abide the outcome of the Appeal.
Orders accordingly.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 17 th DAY OF SEPTEMBER 2026.
B.W. MURUNGA
JUDGE
Delivered on virtual platform in the presence of:
…………………… for the Applicant
…………………… for the Respondent
Kevin Babu - Court Assistant