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Court of AppealStruck OutCivil Appeal 52 of 1999

A.H. LALJI vs B.H. LALJI & 3 OTHERS [2000] KECA 231 (KLR)

Court of Appeal
7 April 2000
305 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~1 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal struck out an appeal because the order being appealed was defective and could not be fixed with a supplementary affidavit.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi in Civil Appeal 52 of 1999, delivered on 7 April 2000. The document reproduces only the ruling of Owuor JA, who had read the draft rulings of his colleagues Gicheru and Shah JJ.A; their rulings are not included in the copy provided. The appeal by A.H. Lalji against B.H. Lalji, D.H. Nurani, Samvir Management Services Limited and ATTA (Kenya) Limited faced an objection, advanced by Mr. Oduol, that the order set out in the record of appeal was defective. Owuor JA, relying on what he described as numerous recent authorities of the Court - Trimborn Agricultural Engineering Limited v David Njoroge Kabaiko and Kenya Shield Security Limited, and Pepco Construction Company Limited v Carter & Sons Limited - held that a defective primary document cannot be amended or brought on record by way of a supplementary affidavit, and that such a defect renders the whole appeal incompetent. He identified two defects in the order complained of: it contained an order relating to another ruling that was not the subject matter of the appeal, and it contained an amendment whose origin could not be ascertained. Applying the definition of an amendment in Jowitt's Dictionary of English Law, he held that where it is disputed who effected an amendment and at what stage of the proceedings, there must be evidence of its authenticity. He concluded that the order was incurably defective, thereby rendering the appeal incompetent. The ruling binds lower courts to the proposition that defects in the primary documents of a record of appeal cannot be cured by supplementary affidavit. No formal orders or costs order appear in the document as provided.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether a defective primary document in a record of appeal - here the order appealed against - can be amended or brought on record by way of a supplementary affidavit.
  2. 2.Whether the order filed in the record of appeal was defective, containing as it did an order in respect of another ruling not subject matter of the appeal and an amendment whose origin was not ascertainable.
  3. 3.Whether evidence is required to establish the authenticity of an amendment to an order where it is disputed who effected the amendment and at what stage of the proceedings it was made.
  4. 4.The consequence of those defects on the competence of the appeal as a whole.

Key legal issues

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01

Whether a defective primary document in a record of appeal can be amended or brought on record by way of a supplementary affidavit.

Holding

No. A defective primary document cannot be amended or brought on record by supplementary affidavit, and the defect renders the whole appeal incompetent.

Reasoning

Owuor JA grounded the holding in what he described as numerous recent authorities of the Court, specifically Trimborn Agricultural Engineering Limited v David Njoroge Kabaiko and Kenya Shield Security Limited and Pepco Construction Company Limited v Carter & Sons Limited. Because the order filed was the primary document underpinning the appeal, its defectiveness went to the competence of the appeal itself and could not be cured by a supplementary affidavit, which is no substitute for a proper primary document on the record.

p. 2
02

Whether the order filed in the record of appeal was defective.

Holding

Yes - it was incurably defective because it incorporated an order relating to another ruling not subject matter of the appeal and contained an amendment whose origin could not be ascertained.

Reasoning

The court examined the content of the order complained of and found two independent defects: it embraced an order made in respect of a ruling that was not the subject matter of the present appeal, and it contained an amendment whose origin could not be traced. Either defect undermined the order as the primary document supporting the appeal, and together they made the defect incurable rather than one capable of amendment.

p. 2
03

What evidence is required where the authenticity of an amendment to an order is in dispute.

Holding

There must be some evidence establishing the authenticity of the amendment.

Reasoning

Adopting the definition of an amendment in Jowitt's Dictionary of English Law as the correction of an error or omission or the curing of a defect in judicial proceedings, the court reasoned that an amendment of unascertainable origin cannot stand. Where the identity of the person who effected the amendment and the stage of the proceedings at which it was made are both in dispute, evidence of its authenticity is required; in the absence of such evidence the amended order is incurably defective.

p. 2

Legal principles established

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  • A defective primary document in a record of appeal cannot be amended or brought on record by way of a supplementary affidavit; such a defect renders the whole appeal incompetent.
  • Where it is disputed who effected an amendment to an order and at what stage of the proceedings it was made, there must be evidence establishing the authenticity of the amendment.

Court orders

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  1. 1.Objection to the order in the record of appeal upheld - the order held incurably defective, rendering the whole appeal incompetent (no formal order or costs order is reproduced in the document as provided).

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Owuor JA delivered a separate ruling after reading the draft rulings of Gicheru and Shah JJ.A. Relying on recent authorities of the Court, he held that a defective primary document cannot be amended or brought on record by way of a supplementary affidavit, that the order in the record of appeal was incurably defective (containing an order relating to another ruling and an amendment of unascertainable origin), and that the defects rendered the whole appeal incompetent.

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.p. 2
majority
SH
majority
Jurisdiction invoked
Not stated in the ruling; the Court of Appeal determined the competence of Civil Appeal No. 52 of 1999 in exercise of its appellate jurisdiction, citing no constitutional or statutory provision in the document.

Relief refused

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Cure of the defective order in the record of appeal by way of a supplementary affidavit, so that the appeal could proceed on a supplemented record.

A defective primary document cannot be amended or brought on record by way of a supplementary affidavit; the defect renders the whole appeal incompetent.

p. 2

Costs

No costs order is recorded in the ruling as provided.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

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.
p. 2Competence of appeal - defective primary document cannot be cured by supplementary affidavit
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.
p. 2Defects in the order appealed against
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.
p. 2Evidence of authenticity of amendments to orders
the correction of some error or omission or the curing of some defect in judicial proceedings
p. 2Definition of 'amendment' (Jowitt's Dictionary of English Law)
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.
p. 2Disposition - objection upheld; appeal held incompetent (operative closing passage of the ruling)

Issues in the judgment

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material

The document reproduces only the ruling of Owuor JA; it refers to separate draft rulings by Gicheru and Shah JJ.A which are not included, so the full court's reasoning and any consolidated final orders cannot be verified from this document.

material

No formal final orders or costs order appear in the document; it ends with the delivery date, so the precise disposition and costs are recorded only through the operative holding.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "A.H. LALJI vs B.H. LALJI & 3 OTHERS [2000] KECA 231 (KLR)", Case Analysis (2000). Civil Appeal 52 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/231/eng@2000-04-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.