A.H. LALJI vs B.H. LALJI & 3 OTHERS [2000] KECA 291 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal because the court order in the appeal record was defective and could not be fixed with an 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, namely the order filed in the record of appeal, can be amended or brought on record by way of a supplementary affidavit.
- 2.Whether the order in the record of appeal, which contains an order in respect of another ruling not subject matter of the present appeal and an amendment whose origin is not ascertainable, is defective.
- 3.Whether, where it is disputed who effected an amendment and at what stage of the proceedings, evidence of the authenticity of the amendment is required.
- 4.Whether the appeal is competent notwithstanding the state of the order in the record of appeal.
Key legal issues
#Whether a defective primary document can be amended or brought on record by way of a supplementary affidavit
No. A supplementary affidavit is not a vehicle for curing or introducing a defective primary document; the defect goes to the competence of the appeal and renders the whole appeal incompetent.
Owuor JA grounded the holding in what he described as numerous recent authorities of this Court, citing Trimborn Agricultural Engineering Limited vs David Njoroge Kabaiko, Kenya Shield Security Limited (Civil Appeal (Application) No. 274 of 1998) and Pepco Construction Company Limited vs Carter & Sons Limited (Civil Appeal (Application) No. 80 of 1999). The order in the record of appeal is the primary document founding the appeal; because the defect attaches to that primary document, it is not a mere irregularity curable by affidavit but goes to the competence of the appeal itself.
Whether the order in the record of appeal was incurably defective
Yes. The order contained an order belonging to another ruling not subject matter of the appeal and an amendment whose origin could not be ascertained; with no evidence of the amendment's authenticity, the defect was incurable.
The order complained of did not correspond to the ruling under appeal: it carried an order relating to another ruling, and an amendment of unascertainable origin. Adopting Jowits Dictionary of English Law's definition of an amendment as the correction of some error or omission or the curing of some defect in judicial proceedings, the court held that where the author and the stage of an amendment are disputed, evidence of authenticity is indispensable. Absent such evidence, the defects were incurable and the appeal incompetent.
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.
- An order in a record of appeal that incorporates an order from a ruling not subject to the appeal, or an amendment whose origin cannot be ascertained, is defective.
- Where it is disputed who effected an amendment to an order and at what stage of the proceedings, there must be evidence establishing the authenticity of the amendment.
Court orders
#- 1.The objection to the order in the record of appeal was upheld: the order was held incurably defective, rendering the whole appeal incompetent (as stated in the delivered ruling of Owuor, JA; no formal final orders or costs order are reproduced in the copy).
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Owuor JA, having read the draft rulings of Gicheru and Shah JJA, held that the order in the record of appeal was a defective primary document which could not be amended or brought on record by way of a supplementary affidavit. The order embodied an order belonging to another ruling not subject to the appeal and an amendment of unascertainable origin; it was incurably defective, rendering 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
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C No. 3484 of 1995
- Jurisdiction invoked
- Not expressly stated in the ruling; the matter reached the Court of Appeal at Nairobi as an appeal from the ruling and order of the High Court of Kenya at Nairobi (Aluoch, J) in H.C.C.C No. 3484 of 1995.
Relief refused
#Amendment of the defective order, or its introduction into the record, by way of a supplementary affidavit
A defective primary document cannot be amended or brought on record by supplementary affidavit; the defect renders the whole appeal incompetent.
The appeal proceeding despite the defective order in the record of appeal
The order was incurably defective because it incorporated an order from another ruling not subject to the appeal and an amendment of unascertainable origin, rendering the appeal incompetent.
Costs
No costs order appears 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.
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 copy contains only the ruling of Owuor JA. The draft rulings of Gicheru and Shah JJA that he read and considered are not annexed, and no consolidated final orders or costs order appear, so the court's formal disposition cannot be verified from this document alone.
The appeal number 'Civil Appeal (Application) No. 274 of 1998' is printed immediately after 'Kenya Shield Security Limited' without a 'vs', so it is ambiguous whether that citation attaches to Kenya Shield Security Limited alone or also to Trimborn Agricultural Engineering Limited vs David Njoroge Kabaiko.
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 291 (KLR)", Case Analysis (2000). Civil Appeal No. 52 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/291/eng@2000-04-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.