Kairu v Shaw & 3 others [1985] KECA 63 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a rare application to add missing material to an appeal record because a lawyer's trial notes proved the omissions were real.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether leave should be granted to insert into the record of appeal omissions said to have been left out from the trial judge's notes of the trial
- 2.Whether omissions from the trial judge's notes, backed by counsel's contemporaneous notes, could be admitted to the record and additional evidence taken
Key legal issues
#Whether omissions from the trial judge's notes may be inserted into the record of appeal
The application, though novel and not to be encouraged as a matter of course, was allowed because the omissions were exceptionally backed by counsel's contemporaneous notes and might affect the outcome of the appeal.
The court stressed that trial judges' notes are normally accepted as correct and that defeated parties must not be permitted to attack the record at will. However, the exceptional feature here was that Mr Muttu's contemporaneous notes of the evidence corroborated the alleged omissions. Combined with the possibility that the omissions could affect the result of the appeal, the court found it just to allow the application and to secure a full opportunity for the defendants to meet the additional material.
The appropriate manner of dealing with the supplemented record
The advisable course was to remit the proceedings to the High Court, preferably before the trial judge, so that the plaintiff and Mr Muttu could testify further and the defendants could fully respond.
Rather than decide the appeal on the supplemented record, the court considered it advisable for the additional evidence to be taken in the High Court, preferably before the learned judge who tried the suit. This preserved the fairness of the process: Mr Muttu and the plaintiff could testify further while the defendants retained a full opportunity to challenge the new material. The remittal was limited to the extent stated in the application.
Legal principles established
#- The trial judge's notes are normally accepted as the correct record of the trial and will not readily be attacked by a defeated party.
- Applications to supplement the record of appeal with omissions from the trial judge's notes will not be freely embraced, but may be allowed in exceptional circumstances where the omissions are corroborated and may affect the result of the appeal.
Court orders
#- 1.Leave granted to insert the omissions into the record of appeal
- 2.Leave given to the plaintiff to call additional evidence before the High Court, preferably before the judge who tried the suit
- 3.Proceedings remitted to the High Court for hearing of additional evidence, limited to the extent stated in the application
- 4.Costs in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Jurisdiction invoked
- Inherent appellate jurisdiction of the Court of Appeal over appeals from the High Court (record of appeal and leave to adduce additional evidence)
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.
It is the practice, and a good practice it is, normally to accept the trial judge’s notes as correct.
It would not do to allow the record of trial to be attacked by the defeated party every time a suit is lost.
We therefore order that the proceedings be remitted to the High Court for the hearing of additional evidence as indicated, and limited to the extent stated in the application.
Costs in the appeal. So ordered.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kairu v Shaw & 3 others [1985] KECA 63 (KLR)", Case Analysis (1985). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/63/eng@1985-12-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.