[2000] KECA 291 (KLR)
The Court of Appeal held that the order included in the record of appeal was incurably defective because it contained an order relating to a different ruling not subject to the present appeal and included an amendment whose origin was not ascertainable. The court reaffirmed that a defective primary document cannot...
Source-derived case information.
- Citation
- [2000] KECA 291 (KLR)
- Parties
- Appellant: A.H. Lalji; Respondent: B.H. Lalji; Respondent: D.H. Nurani; Respondent: Samvir Management Services Limited; Respondent: Atta (Kenya) Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 52 of 1998
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection
- Outcome
- Appeal struck out as incompetent.
- Judges
- E Owuor
- Legal Topics
- Competency of Appeal, Defective Record of Appeal, Amendment of Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
A.H. Lalji
Appellant
B.H. Lalji
Respondent
D.H. Nurani
Respondent
Samvir Management Services Limited
Respondent
Atta (Kenya) Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection
Legal Issues
- 1 Whether a defective primary document in the record of appeal can be amended or regularized by way of a supplementary affidavit.
- 2 Whether the order included in the record of appeal is incurably defective and renders the appeal incompetent.
Ratio Decidendi
The Court of Appeal held that the order included in the record of appeal was incurably defective because it contained an order relating to a different ruling not subject to the present appeal and included an amendment whose origin was not ascertainable. The court reaffirmed that a defective primary document cannot be regularized by a supplementary affidavit, as established in recent authorities. The lack of evidence regarding the authenticity of the amendment further undermined the validity of the order. Consequently, the defect in the record of appeal was fatal and rendered the entire appeal incompetent.
Court Disposition
Appeal struck out as incompetent.
Orders
- The appeal is struck out for being incompetent due to a defective order in the record of appeal.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAIROBI (CORAM: GICHERU, SHAH & OWUOR, JJ.A) CIVIL APPEAL NO. 52 OF 1998 BETWEEN
A.H. LALJI ........................................APPELLANT AND B.H. LALJI .................................... 1ST RESPONDENT D.H.NURANI.................................. 2ND RESPONDENT SAMVIR MANAGEMENT SERVICES LIMITED ............. 3RD RESPONDENT ATTA (KENYA) LIMITED ........................... 4TH RESPONDENT
(Appeal from the Ruling and Order of the High Court of Kenya at Nairobi (Lady Justice Aluoch) dated 19th February, 1998 in H.C.C.C No. 3484 of 1995) ******************** RULING OF OWUOR, J.A
I have had the advantage of reading and considering in draft the rulings of GICHERU and SHAH, JJ.A. I have no doubt in my mind and based on the numerous recent authorities of this Court; see Trimborn Agricultural Engineering Limited vs David Njoroge Kabaiko and Kenya Shield Security Limited Civil Appeal (Application) No. 274 of 1998, and Pepco Construction Company Limited vs Carter & Sons Limited Civil Appeal (Application) No. 80 of 1999, that a defective primary document, which the order filed herein is, cannot be amended or brought on record by way of a supplementary affidavit. In that regard it renders the whole appeal incompetent.
The order complained of contains an order that is in respect of another ruling that is not subject matter of the present appeal. Furthermore it contains an amendment whose origin is not ascertainable. Jowits Dictionary of English Law defines an amendment as:-
"the correction of some error or omission or the curing of some defect in judicial proceedings".
In a case like this one where it is in dispute as to who effected the amendment and at what stage of the proceedings, there has to be some evidence as to the authenticity of the amendment.
I would find merit in Mr. Oduol's objection to the order in the record of appeal and hold that the same is incurably defective, thereby rendering the appeal incompetent.
Dated and delivered at Nairobi this 7th day of April, 2000.
E. OWUOR
...............
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR