Deepak Chamanlal Kamani & Another v Kenya Anti-Corruption Commission & Others
The bottom line
#Kenya's Court of Appeal refused to strike out an appeal over missing judge's notes, ruling courts must consider cheaper alternatives before killing a case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appeal should be struck out as incurably defective for omitting the notes of two of the three trial judges from the record of appeal
- 2.Whether a distinction can be drawn between trial judge's notes containing witness evidence and notes made in a hearing without witnesses
- 3.How sections 3A and 3B of the Appellate Jurisdiction Act (the overriding objective) bear on the striking-out jurisdiction
Key legal issues
#Whether omission of two trial judges' notes renders an appeal incurably defective
The court declined to strike out, holding the overriding objective requires consideration of alternatives before the draconian step of striking out; a supplementary record under rule 89(3) was ordered instead
Rule 85(1)(d) requires the trial judge's notes in the record, and paragraph (d) is not covered by rule 85(2A). However, sections 3A and 3B of the Appellate Jurisdiction Act oblige the court, in interpreting the rules, to facilitate just, expeditious, proportionate and affordable resolution of appeals. Striking out would increase costs and delay, and rule 89(3) provides an alternative: a supplementary record. The court therefore refused to strike out and ordered the supplementary record within 21 days.
Whether trial judge's notes without witness evidence qualify as 'the trial judge's notes of the hearing'
No distinction can be drawn; the rule refers simply to the trial judge's notes of the hearing, and a hearing may be conducted without witnesses
Counsel for the 1st respondent argued that notes made where no witnesses testified are not 'notes of the hearing'. The court rejected this: the rule-maker would have said so if only notes containing witness evidence were meant. A hearing can and often is conducted without witnesses, and the absence of witnesses does not deprive proceedings of the character of a hearing.
Scope of the overriding objective in exercising judicial discretion
The overriding objective enriches but does not uproot established principles; a party relying on it must still satisfy ordinary requirements such as explaining delay and demonstrating merit
Following City Chemist, the new thinking does not displace settled precedent but emboldens the court to be guided by broad justice and fairness. A party seeking extension of time cannot invoke the overriding objective alone; it must still explain delay, merit and other established requirements. The principle may even be invoked against a party who reopens litigation after long, unexplained delay.
Legal principles established
#- Omission of the trial judge's notes from a record of appeal is not automatically fatal where the overriding objective offers an alternative remedy
- The trial judge's notes of the hearing are required in a record of appeal regardless of whether witnesses testified
- The overriding objective does not uproot established principles and precedent but enriches them
Court orders
#- 1.Refusal to strike out Civil Appeal No. 152 of 2009
- 2.Order under rule 89(3) that the 1st respondent file and serve a supplementary record of appeal containing the notes of the two judges left out, within twenty-one days
- 3.Costs of the motion to be paid to the applicants by the 1st respondent in any event
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- High Court Petition No. 199 of 2007 (consolidated with Petition No. 200 of 2007)
- Jurisdiction invoked
- Rule 80 of the Court of Appeal Rules (application to strike out a record of appeal); sections 3A and 3B of the Appellate Jurisdiction Act (Cap 9)
- Consolidated with
- High Court Petition No. 200 of 2007
Relief refused
#Striking out of Civil Appeal No. 152 of 2009 with costs
Striking out would not facilitate the just, expeditious, proportionate and affordable resolution of the appeal; an alternative (supplementary record) was available
Costs
The costs of the motion shall be paid to the applicants by the 1st respondent in any event.
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.
We think that in the circumstances of this appeal, striking it out would not facilitate the just, expeditions, proportionate and affordable resolution of the appeal. There is an alternative available and while we refuse to strike out the appeal as requested in the motion, we order, under rule 89 (3) of the Court's rules, the 1st respondent to file and serve upon the applicants a supplementary record of appeal containing the notes of the two Judges left out in the record of appeal.
The 1st respondent must file and serve the supplementary record of appeal within twenty-one (21) days of the date hereof. The costs of the motion shall be paid to the applicants by the 1st respondent in any event.
A hearing can and often is conducted without witnesses. The absence of witnesses cannot deprive proceedings of the right to be called a hearing.
the initial approach of the courts now must not be to automatically strike out a pleading but to first examine whether the striking out will be in conformity with the overriding objectives set out in the legislation.
is not to say that the new thinking totally uproots well established principles or precedent in the exercise of the discretion of the court which is a judicial process devoid of whim and caprice.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Deepak Chamanlal Kamani & Another v Kenya Anti-Corruption Commission & Others", Case Analysis (2010). Civil Appeal (Application) No. 152 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/486/eng@2010-01-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.