Introduction
1. The Court is called upon to determine the Applicant’s Notice of Motion dated 2nd June 2026 seeking, in the main, an order striking out the appeal on the ground that the Record of Appeal is incomplete for failure to include certified typed proceedings of the arbitral proceedings.
2. The application is supported by an affidavit of John Kamau Mwangi sworn on the same date, and written submissions dated 9th June 2026
3. The Respondent/Appellant opposes the application vide the Replying Affidavit sworn by Michael Muriithi Maina on 5th June 2026 and written submissions dated 17th April 2026.
4. The Applicant/Respondent contends that the omission of the typed proceedings offends Order 42 Rule 13(4) of the Civil Procedure Rules, rendering the appeal fatally incompetent.
5. The Respondent’s/Appellant's position, on the other hand, is that the appeal is brought under section 39 of the Arbitration Act; that the parties had agreed at the commencement of the arbitration that no stenographer or transcription services would be engaged and that each party would rely on its own notes.
6. It is therefore the Appellant’s position that the Respondent/Applicant cannot seek to invalidate the appeal on account of the absence of proceedings whose preparation the parties expressly dispensed with.
Analysis and Determination
7. Having considered the application, the affidavits and the rival submissions, the sole issue for determination is whether the omission of certified typed arbitral proceedings renders the Record of Appeal incompetent and liable to be struck out.
Whether the omission of certified typed arbitral proceedings renders the Record of Appeal incompetent and liable to be struck out.
8. It is settled law that the jurisdiction to strike out proceedings is one that ought to be exercised cautiously and only in the clearest of cases. In DT Dobie & Company (Kenya) Limited v Muchina & another (Civil Appeal 37 of 1978) [1980] KECA 3 (KLR), the Court held that no suit ought to be summarily terminated unless it is so hopeless that it plainly and obviously discloses no reasonable cause of action.
“It cannot be doubted that the court has an inherent jurisdiction to dismiss an action which is an abuse of the process of the court. It is a jurisdiction which ought to be very sparingly exercised. and only in exceptional cases.”
9. The Court went on to state that:
“No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it.”
10. The above position was reaffirmed by the Court of Appeal in Meya Agri Traders Ltd v Elgon House (2010) Ltd [2023] KECA 574 (KLR), where the Court stated that the power to strike out pleadings is a discretionary power which ought to be exercised only in plain and obvious cases.
11. Although that decision in the DT Dobie (supra) concerned pleadings, the principle, in the view of the Court, applies with equal force to applications seeking the drastic remedy of striking out proceedings.
12. In Deepak Chamanlal Kamani & another v Kenya Anti-Corruption Commission & 3 others [2010] KECA 486 (KLR), the Court of Appeal acknowledged that the overriding objective under sections 3A and 3B of the Appellate Jurisdiction Act (also captured under Section 1A and 1B of the Civil Procedure Act) requires courts to administer justice in a just, expeditious, proportionate and affordable manner rather than resorting automatically to the draconian remedy of striking out proceedings.
13. The Court in Deepak (supra) reasoned that striking out the appeal would merely delay the matter, increase costs and likely result in the filing of a fresh appeal. Accordingly, it declined to strike out the appeal and instead directed the appellant to file a supplementary record containing the omitted judges' notes within 21 days, while awarding the costs of the application to the applicants.
14. Order 42 Rule 13(4) of the Civil Procedure Rules sets out the documents ordinarily required before an appeal is admitted to hearing. However, it is clear that the proviso to that Rule expressly empowers the Court to dispense with documents other than the memorandum of appeal, pleadings, and the judgment, order or decree appealed from where they are not relevant to the determination of the appeal.
15. It therefore follows that the Rule does not stipulate that every omission automatically renders an appeal incompetent. The Court must therefore consider the nature of the omitted document, the circumstances of its omission, and whether any prejudice has been occasioned.
16. In the present case, the Court notes from the record that this appeal arises from arbitral proceedings under section 39 of the Arbitration Act and not from proceedings before a subordinate court. Under section 20 of the Arbitration Act, parties are at liberty to agree on the procedure to govern the arbitration.
17. The material before the Court demonstrates that the parties agreed that no transcription services would be procured and that they would rely on their own notes during the hearing. That agreement has not been controverted.
18. Having voluntarily adopted that procedure, the Applicant/Respondent cannot subsequently rely on the absence of typed proceedings (as they now purport to do) as a basis for impugning the competence of the appeal. To permit such a course would offend the principle that parties are bound by their own agreements and would undermine the autonomy that underpins arbitral proceedings.
19. The Applicant/Respondent has not demonstrated any prejudice arising from the omission. Further, there is no suggestion that the Memorandum of Appeal, the pleadings, or the arbitral award, the essential documents contemplated under the proviso to Order 42 Rule 13(4), are absent from the Record of Appeal.
20. In any event, if, upon considering the appeal, the Court forms the view that any additional material is necessary for its proper determination, Order 42 Rule 13(3) empowers it to issue appropriate directions. Striking out the appeal is therefore neither necessary nor proportionate in the circumstances.
21. Further, I am unpersuaded that the authorities relied upon by the Applicant/Respondent compel a different conclusion. I agree with the Appellant that the authorities cited by the Respondent concern procedural frameworks materially distinguishable from the present appeal or involve omission of documents whose production is expressly mandatory. The circumstances before this Court are different.
22. In the premises, I find that the omission of certified typed arbitral proceedings does not, in the circumstances of this case, render the Record of Appeal incompetent.
23. Accordingly, the Notice of Motion dated 2nd June 2026 is dismissed, with no orders as to costs. The appeal shall therefore proceed to hearing on its merits.
24. It is so ordered
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 9TH DAY OF JULY 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
……………… for the Applicant
……………for the Respondent
1. The Court is called upon to determine the Applicant’s Notice of Motion dated 2nd June 2026 seeking, in the main, an order striking out the appeal on the ground that the Record of Appeal is incomplete for failure to include certified typed proceedings of the arbitral proceedings.
2. The application is supported by an affidavit of John Kamau Mwangi sworn on the same date, and written submissions dated 9th June 2026
3. The Respondent/Appellant opposes the application vide the Replying Affidavit sworn by Michael Muriithi Maina on 5th June 2026 and written submissions dated 17th April 2026.
4. The Applicant/Respondent contends that the omission of the typed proceedings offends Order 42 Rule 13(4) of the Civil Procedure Rules, rendering the appeal fatally incompetent.
5. The Respondent’s/Appellant's position, on the other hand, is that the appeal is brought under section 39 of the Arbitration Act; that the parties had agreed at the commencement of the arbitration that no stenographer or transcription services would be engaged and that each party would rely on its own notes.
6. It is therefore the Appellant’s position that the Respondent/Applicant cannot seek to invalidate the appeal on account of the absence of proceedings whose preparation the parties expressly dispensed with.
Analysis and Determination
7. Having considered the application, the affidavits and the rival submissions, the sole issue for determination is whether the omission of certified typed arbitral proceedings renders the Record of Appeal incompetent and liable to be struck out.
Whether the omission of certified typed arbitral proceedings renders the Record of Appeal incompetent and liable to be struck out.
8. It is settled law that the jurisdiction to strike out proceedings is one that ought to be exercised cautiously and only in the clearest of cases. In DT Dobie & Company (Kenya) Limited v Muchina & another (Civil Appeal 37 of 1978) [1980] KECA 3 (KLR), the Court held that no suit ought to be summarily terminated unless it is so hopeless that it plainly and obviously discloses no reasonable cause of action.
“It cannot be doubted that the court has an inherent jurisdiction to dismiss an action which is an abuse of the process of the court. It is a jurisdiction which ought to be very sparingly exercised. and only in exceptional cases.”
9. The Court went on to state that:
“No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it.”
10. The above position was reaffirmed by the Court of Appeal in Meya Agri Traders Ltd v Elgon House (2010) Ltd [2023] KECA 574 (KLR), where the Court stated that the power to strike out pleadings is a discretionary power which ought to be exercised only in plain and obvious cases.
11. Although that decision in the DT Dobie (supra) concerned pleadings, the principle, in the view of the Court, applies with equal force to applications seeking the drastic remedy of striking out proceedings.
12. In Deepak Chamanlal Kamani & another v Kenya Anti-Corruption Commission & 3 others [2010] KECA 486 (KLR), the Court of Appeal acknowledged that the overriding objective under sections 3A and 3B of the Appellate Jurisdiction Act (also captured under Section 1A and 1B of the Civil Procedure Act) requires courts to administer justice in a just, expeditious, proportionate and affordable manner rather than resorting automatically to the draconian remedy of striking out proceedings.
13. The Court in Deepak (supra) reasoned that striking out the appeal would merely delay the matter, increase costs and likely result in the filing of a fresh appeal. Accordingly, it declined to strike out the appeal and instead directed the appellant to file a supplementary record containing the omitted judges' notes within 21 days, while awarding the costs of the application to the applicants.
14. Order 42 Rule 13(4) of the Civil Procedure Rules sets out the documents ordinarily required before an appeal is admitted to hearing. However, it is clear that the proviso to that Rule expressly empowers the Court to dispense with documents other than the memorandum of appeal, pleadings, and the judgment, order or decree appealed from where they are not relevant to the determination of the appeal.
15. It therefore follows that the Rule does not stipulate that every omission automatically renders an appeal incompetent. The Court must therefore consider the nature of the omitted document, the circumstances of its omission, and whether any prejudice has been occasioned.
16. In the present case, the Court notes from the record that this appeal arises from arbitral proceedings under section 39 of the Arbitration Act and not from proceedings before a subordinate court. Under section 20 of the Arbitration Act, parties are at liberty to agree on the procedure to govern the arbitration.
17. The material before the Court demonstrates that the parties agreed that no transcription services would be procured and that they would rely on their own notes during the hearing. That agreement has not been controverted.
18. Having voluntarily adopted that procedure, the Applicant/Respondent cannot subsequently rely on the absence of typed proceedings (as they now purport to do) as a basis for impugning the competence of the appeal. To permit such a course would offend the principle that parties are bound by their own agreements and would undermine the autonomy that underpins arbitral proceedings.
19. The Applicant/Respondent has not demonstrated any prejudice arising from the omission. Further, there is no suggestion that the Memorandum of Appeal, the pleadings, or the arbitral award, the essential documents contemplated under the proviso to Order 42 Rule 13(4), are absent from the Record of Appeal.
20. In any event, if, upon considering the appeal, the Court forms the view that any additional material is necessary for its proper determination, Order 42 Rule 13(3) empowers it to issue appropriate directions. Striking out the appeal is therefore neither necessary nor proportionate in the circumstances.
21. Further, I am unpersuaded that the authorities relied upon by the Applicant/Respondent compel a different conclusion. I agree with the Appellant that the authorities cited by the Respondent concern procedural frameworks materially distinguishable from the present appeal or involve omission of documents whose production is expressly mandatory. The circumstances before this Court are different.
22. In the premises, I find that the omission of certified typed arbitral proceedings does not, in the circumstances of this case, render the Record of Appeal incompetent.
23. Accordingly, the Notice of Motion dated 2nd June 2026 is dismissed, with no orders as to costs. The appeal shall therefore proceed to hearing on its merits.
24. It is so ordered
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 9TH DAY OF JULY 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
……………… for the Applicant
……………for the Respondent