A.H. LALJI vs B.H. LALJI & 3 OTHERS [2000] KECA 231 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.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.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.The consequence of those defects on the competence of the appeal as a whole.
Key legal issues
#Whether a defective primary document in a record of appeal can be amended or brought on record by way of a supplementary affidavit.
No. A defective primary document cannot be amended or brought on record by supplementary affidavit, and the defect renders the whole appeal incompetent.
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.
Whether the order filed in the record of appeal was defective.
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.
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.
What evidence is required where the authenticity of an amendment to an order is in dispute.
There must be some evidence establishing the authenticity of the amendment.
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.
Legal principles established
#- 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
#- 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
#One judgment of the whole court — no separate or dissenting opinions.
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
- 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
#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.
Costs
No costs order is recorded in the ruling as provided.
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.
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.
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.
the correction of some error or omission or the curing of some defect in judicial proceedings
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.
Issues in the judgment
#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.
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.