Dickson Ngigi Ngugi v Morrison Njenga Waweru [1979] KECA 8 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an application because attached court documents were uncertified copies, which the Evidence Act forbids.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application for leave to appeal is incompetent for failure to attach a formally extracted, sealed and certified order in compliance with rule 43(3) of the Court of Appeal for East Africa Rules 1972 and sections 66(a) and 68(1)(e), (f) and 68(2)(c) of the Evidence Act
- 2.Whether rule 85(5) of the Court of Appeal Rules requiring certification of the record of appeal extends to copies of documents filed with an application, not only a record of appeal
- 3.Whether the Evidence Act applies to proceedings in the Court of Appeal, or whether the Court may be governed by rules of court alone
Key legal issues
#Admissibility of uncertified copies of judicial documents attached to an application for leave to appeal
The application was incompetent because the documents attached to the applicant's affidavit were uncertified copies of judicial documents; under section 68(2)(c) of the Evidence Act only a certified copy of such documents is admissible.
The court held that judicial records are public documents under section 79(1)(a)(iii) of the Evidence Act; section 68(1)(e) and (f) permits secondary evidence only by certified copy, and section 68(2)(c) admits no other kind. Advocates' statements from the Bar as to authenticity could not cure the statutory bar.
Scope of rule 85(5) certification requirement
The requirement that copies be certified applies to documents filed with an application as well as to a record of appeal; the expression 'record of appeal' in the rule is not to be read so as to confine its application.
Rejecting counsel's narrow literal reading, the court held there is no warrant for a limited interpretation of rule 85(5); because filed copies are secondary evidence which could be certified, the Evidence Act requires certification, and the Court must be able to satisfy itself of authenticity regardless of the procedural vehicle in which the copies are filed.
Whether the rules of court displace the Evidence Act in the Court of Appeal
They do not. The Evidence Act applies to all judicial proceedings before the Court, and the Appellate Jurisdiction Act 1977, section 3(3), requires the law applicable in the High Court, which is bound to observe the Evidence Act, to be applied on appeal.
Counsel's contention that the matter was governed by rules of court and not the Evidence Act was rejected as inconsistent with section 2(1) of the Evidence Act, which applies to all judicial proceedings other than in a Kadhi's court, and with section 3(3) of the Appellate Jurisdiction Act; nothing in the Constitution's section 64(1) authorised departure from the Act.
Legal principles established
#- Copies of judicial documents filed in the Court of Appeal, whether in a record of appeal or with an application, must be certified; uncertified copies are inadmissible secondary evidence and the Court may not look at them.
- Rule 85(5) certification requirements apply not only to a record of appeal but to copies of documents filed with any application, so that the Court may be satisfied of their authenticity.
- The Evidence Act applies to all judicial proceedings before the Court of Appeal; neither section 64(1) of the Constitution nor the Appellate Jurisdiction Act authorises the Court to ignore its provisions.
Court orders
#- 1.The application is struck out with costs to the respondent
- 2.Application dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Jurisdiction invoked
- Court of Appeal for East Africa Rules 1972; the application for leave to appeal from a High Court order made pursuant to Nyarangi J's direction that the applicant seek leave of the Court of Appeal
Relief refused
#Leave to appeal against the High Court order of 24th November 1978 directing that possession of the suit premises be given to the respondent
The application was incompetent because the copies of the judicial documents attached were uncertified and inadmissible under the Evidence Act
Extension of time by thirty days within which to file the appeal
It fell with the incompetent application
Costs
The application is struck out with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
For these reasons this application is incompetent and it is ordered to be struck out with costs to the respondent.
in our opinion, a copy of a document which is not certified is inadmissible and the Court may not look at it because of the provisions of sections 67 and 68(1) (e) and (f) and (2) (c) of the Evidence Act.
The Court must be satisfied of the authenticity of the copies filed, whether it be a record of appeal or an application.
Neither section 64(1) of the Constitution (which brought the Court of Appeal into being) nor any provision of the Appellate Jurisdiction Act 1977 authorises us to ignore the provisions of the Evidence Act.
Issues in the judgment
#The copy of the judgment bears the date '30th ady of July 1979', apparently a typographical error in the certified copy for 'day'; the date is recorded as 30 July 1979.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dickson Ngigi Ngugi v Morrison Njenga Waweru [1979] KECA 8 (KLR)", Case Analysis (1979). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1979/8/eng@1979-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.