Omega Enterprises (Kenya) Ltd v Kenya Tourist Development Corporation & 2 others [1994] KECA 102 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that documents arising after an appealed order can be added to the appeal record without needing special permission.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a Supplementary Record of Appeal under rule 89(1) may contain documents and proceedings which came into existence after the order appealed from
- 2.Whether such post-judgment documents amount to additional evidence requiring leave under rule 29 of the Court of Appeal Rules
- 3.Whether the notice of grounds for affirming decision was competent
Key legal issues
#Whether post-order proceedings can enter the record by way of Supplementary Record under rule 89(1)
Yes, per the majority: such documents are matters of record, not additional evidence, and their exclusion would create a dangerous precedent and prevent the Court from doing justice.
The appellant himself took out a Chamber Summons to set aside the order appealed from, and the judge heard and dismissed it. Those rulings and proceedings exist on the superior court's file. The Court hearing the appeal against the 15th January 1993 order cannot make intelligible orders without knowing of those later steps. They did not exist when the order was made, so they cannot be 'additional evidence' under rule 29.
Whether rule 29 leave was required for the Supplementary Record
No: rule 29 governs additional evidence taken at the discretion or direction of the Court of Appeal; here the material was generated in the High Court at the appellant's own instance.
The evidence in the Supplementary Record was not sought from nor directed by the Court of Appeal. It consists of proceedings the appellant himself initiated in the High Court to set aside the ruling of 15th January 1993. Those proceedings and decisions form part of the logical record of the case and are admissible under rules 85(1)(k) and 89(1) instead.
Scope of rule 85(1)(k)
The majority read sub-paragraph (k) broadly, noting the omission of the words 'put in evidence at the hearing' present in sub-paragraph (f); the dissent read (k) ejusdem generis as limited to documents before the judge at the hearing.
Cockar JA compared sub-paragraph (k) with (f) and concluded that the deliberate omission of 'put in evidence at the hearing' shows an intention to cover exceptional situations. Muli JA, dissenting, held the documents in (k) must have been admitted prior to or during the hearing, and that admitting subsequent proceedings would violate rule 85 and circumvent rule 29.
Legal principles established
#- A Supplementary Record of Appeal under rule 89(1) may properly include post-judgment interlocutory proceedings and rulings arising from the order under appeal, including an application to set aside that order, since these are matters of record the Court must not be deprived of.
- Rule 29 (additional evidence) is not the route where the material was placed before the superior court by the appellant himself in later proceedings; it applies only to evidence sought to be taken by the Court of Appeal on its own discretion or direction.
- Rule 85(1)(k) is not confined to documents tendered at the hearing; its qualifying words are 'as may be necessary for the proper determination of the appeal' and it caters for exceptional situations.
- Dissenting position: documents coming into existence after the judgment appealed from cannot form part of the record of appeal and may only be introduced as additional evidence under rule 29.
Court orders
#- 1.The preliminary objection to the Supplementary Record of Appeal is overruled
- 2.The objection to the notice of grounds for affirming decision is overruled
- 3.The Supplementary Record of Appeal is admitted
- 4.The appeal will now be set down for hearing on a date to be fixed in the registry
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
Overruled the preliminary objection to the Supplementary Record of Appeal and the notice of grounds for affirming decision, holding the documents were matters of record the Court is entitled to see and not additional evidence requiring rule 29 leave.
I am satisfied that the Supplementary Record of Appeal has been properly filed and it should be admitted. I would overrule the objection.p. 2
Wrote the judgment
Agreed with Kwach JA and independently reasoned that rule 85(1)(k) and rule 89(1) permit admission of the Supplementary Record, and that rule 29 was inapplicable since the additional material was placed before the High Court by the appellant himself.
Sub-paragraph (k) is meant to provide for exceptional situations such as the present one which litigants or appellants may face.p. 4
Wrote the judgment
Dissented: documents post-dating the ruling appealed from are not part of the record under rule 85(1); rule (k) should be read ejusdem generis with documents before the judge; such material could only come in as additional evidence under rule 29.
I would reject the Supplementary Record sought to be relied upon in the present appeal as totally inadmissible.p. 6
- On appeal from
- High Court of Kenya
- not stated in judgment
- Jurisdiction invoked
- Appellate jurisdiction under Part IV of the Court of Appeal Rules (appeal from a superior court in its original jurisdiction); no specific constitutional provision invoked
Relief refused
#The appellant's request to confine the appeal record to materials before the judge on 15th January 1993 and to strike out the Supplementary Record
The majority held the documents were matters of record necessary for the Court to do justice, created by the appellant himself, and admissible under rules 85(1)(k) and 89(1)
Costs
No costs order made; the ruling was interlocutory and the appeal was set down for hearing.
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.
These are really matters of record which this Court is entitled to see and which must be drawn to the attention of the Court, and not concealed from it, if the Court is to do justice to both parties and make intelligible orders.
I am satisfied that the Supplementary Record of Appeal has been properly filed and it should be admitted. I would overrule the objection.
I agree with the order proposed by Kwach, JA that the preliminary objection raised by Mr Lakha on behalf of the appellant be over-ruled and that the appeal shall proceed to hearing.
I would reject the Supplementary Record sought to be relied upon in the present appeal as totally inadmissible.
Issues in the judgment
#The dissent refers to a ruling by Akiwumi J dated 19th March 1994, while the majority and the recital of the appeal refer to the same ruling as dated 19th March 1993, an apparent internal inconsistency in dates.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omega Enterprises (Kenya) Ltd v Kenya Tourist Development Corporation & 2 others [1994] KECA 102 (KLR)", Case Analysis (1994). Court of Appeal, Nairobi (Civil Appeal from ruling of Akiwumi J dated 15th January 1993). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1994/102/eng@1994-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.