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Court of AppealDismissedCivil Appeal (Appli) 94 of 2004

Kenya Industrial Estates Ltd v Samuel Sang & another [2007] KECA 314 (KLR)

Court of Appeal of Kenya
8 June 2007
SBS.E.O. BosirePWP.N. WakiWDW.S. Deverell
2,588 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a bid to add missing core documents to an appeal file, ruling such gaps cannot be fixed late.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal at Nairobi on an application by Kenya Industrial Estates Ltd, the appellant in the main appeal against the judgment of Visram, J. in HCCC No. 994 of 1998, seeking leave under rules 85(2A) and 89 of the Court of Appeal Rules to file a further supplementary record of appeal. The omitted documents were the original plaint (amended twice), orders of Aluoch J and Mulwa J, a request for judgment, a chamber summons with supporting affidavit and exhibits. The respondents, who had earlier withdrawn an application to strike out the record of appeal for the same omissions, opposed the application, arguing delay and that the documents were primary. The Court held that only the documents enumerated in rule 85(2A) may be introduced by way of supplementary record; all other rule 85(1) documents are primary. Following Uhuru Highway Development Ltd v Central Bank of Kenya, Commercial Bank of Africa Ltd v Ndirangu, Delphis Bank Ltd v Caneland Ltd and Dhanji Ramji v Malde Timber, the Court held that the original plaint, despite being superseded by amendments, and the exhibits are primary documents whose omission cannot be cured by a supplementary record. The application was dismissed with costs to the applicant appellant. The ruling binds lower courts and parties on the distinction between primary and secondary documents in records of appeal and confirms that omission of primary documents renders a record incurably defective.

Questions the Court framed

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

  1. 1.Whether the applicant should be granted leave to file a further supplementary record of appeal
  2. 2.Whether the documents sought to be introduced (the original plaint as amended, court orders, request for judgment, chamber summons and exhibits) are primary or secondary documents

Key legal issues

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01

Whether an original plaint, since amended twice with the amended plaint included in the record, is a primary document whose omission renders the record incompetent

Holding

Yes - the original plaint is a primary document and its omission from the record of appeal cannot be cured by a supplementary record, even though the amended plaint is included

Reasoning

Relying on Delphis Bank Ltd v Caneland Ltd, as followed in Samuel Gitau, and on Spry V.P.'s reasoning in Dhanji Ramji v Malde Timber that an original pleading 'remains on the record' notwithstanding amendment, the Court held the original plaint was a mandatory inclusion under rule 85(1)(c). Its omission, together with that of exhibits, rendered the intended supplementary record incapable of grant.

p. 5
02

What distinguishes primary from secondary documents in a record of appeal under rules 85 and 89 of the Court of Appeal Rules

Holding

Primary documents are those outside rule 85(2A): pleadings, the trial Judge's notes, affidavits and exhibits, the judgment or order, a certified copy of the decree and the notice of appeal. Only documents listed in rule 85(2A) may be introduced by supplementary record.

Reasoning

Rule 85 is mandatory and was for many years construed strictly. Rule 85(2A), introduced by Legal Notice No. 76/90, permits only specified documents to be added by supplementary record with leave. Adopting the enumeration in Uhuru Highway Development Ltd v Central Bank of Kenya, the Court confirmed that all other rule 85(1) documents are primary and cannot be introduced by supplementary record.

p. 4
03

The purpose behind the requirement of a complete and accurate record of appeal

Holding

A first appeal requires all material that was before the trial court, absent a rule 85(3) direction, so the appellate court can properly determine whether the judge erred in principle or was plainly wrong

Reasoning

In Commercial Bank of Africa Ltd v Ndirangu the Court explained that an appellate court cannot interfere with judicial discretion unless it has first looked at all the material before the trial court, except material excluded by a rule 85(3) direction. Omission of primary documents is therefore fatal to the competence of the appeal.

p. 4

Legal principles established

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  • Primary documents - pleadings, the trial Judge's notes, affidavits and exhibits, the judgment or order, a certified copy of the decree, and the notice of appeal - cannot be brought into the record of appeal by way of a supplementary record; their omission renders an appeal incurably defective and incompetent
  • Only the documents enumerated in rule 85(2A) of the Court of Appeal Rules may be included in a supplementary record of appeal; all other documents listed under rule 85(1) and (2) are primary documents
  • A party has no discretion to exclude from the record of appeal any document, whether primary or otherwise, unless excluded by a judge's direction under rule 85(3)
  • An original pleading that has subsequently been amended remains a primary document that must be included in the record of appeal

Court orders

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  1. 1.Application for leave to file a further supplementary record of appeal dismissed
  2. 2.Costs of the application to be borne by the applicant

The bench

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

SB
majority

Wrote the judgment

PW
majority
WD
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 994 of 1998
Jurisdiction invoked
Court of Appeal Rules, rules 85(2A) and 89 - application for leave to file a further supplementary record of appeal in a pending appeal

Relief refused

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Leave to file a further supplementary record of appeal

The documents intended to be included, notably the original plaint and exhibits, are primary documents which cannot be brought into the record by way of a supplementary record

p. 5

Costs

Costs of the application shall be borne by the applicant

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.

In the result we find and hold that the application is incapable of grant as sought and we must dismiss it. It is so ordered. Costs of the application shall be borne by the applicant.
p. 5Final orders - dismissal of the application and costs
These documents are 'primary' in the sense that once they are omitted from the record of appeal, they cannot be brought into the record by the filing of a supplementary record.
p. 4Definition and effect of primary documents
The omission of any or parts of a document in the primary category renders an appeal incurably defective and therefore incompetent.
p. 4Consequence of omitting primary documents
A party in a suit has no discretion to exclude from the record of appeal any document, whether primary or otherwise in view of that provision.
p. 4No party discretion over record contents
So there it is. The original plaint ought to have been included in the record as a primary document. It was not.
p. 5Original plaint as primary document despite amendment

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (17)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Industrial Estates Ltd v Samuel Sang & another [2007] KECA 314 (KLR)", Case Analysis (2007). Civil Appeal (Appli) 94 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/314/eng@2007-06-08

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