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Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Appeal No. 23 of 2018

Joseph Sombo & 4 others v Nyari Investments & 5 others [2019] KECA 775 (KLR)

Court of Appeal of Kenya
9 May 2019
1,757 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal struck 200+ pages of documents from an appeal record because they were never part of the original High Court case.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Court of Appeal at Mombasa (Visram, Karanja and Koome, JJ.A) delivered on 9th May 2019 in an appeal that is yet to be fixed for hearing. The respondents in the appeal, by Notice of Motion dated 6th November 2018, sought the striking out of a list of persons described as 'Natives of Nyari Estate Taru and Chengoni Locations' appearing at pages 18 to 256 of the record of appeal, contending that the list was not part of the High Court record and had been 'sneaked in' to mislead the court and prejudice the respondents. The underlying suit was dismissed by the Environment and Land Court (Mukunya, J.) on 24th October 2014, and the appeal against that judgment is pending. The court invoked Rule 87(3) of the Court of Appeal Rules, which empowers the Court or the Registrar to exclude from the record documents which should not form part of it. Examining the whole record, the court found that the list had not been annexed to the verifying affidavits of the plaint or amended plaint, was not in the plaintiffs' list of documents, and was not referred to by any witness; the appellants had misconstrued the trial judge's recital of the plaint as an acknowledgement of a representative suit. The court held that sneaking the list into the record was irregular, unprocedural and tantamount to abuse of the process of the court, and allowed the application, expunging the documents and ordering costs of the application to be in the substantive appeal.

Questions the Court framed

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

  1. 1.Whether the list of persons described as 'Natives of Nyari Estate Taru and Chengoni Locations' at pages 18 to 256 of the record of appeal was part of the record before the High Court
  2. 2.Whether the documents should be struck out and expunged from the record of appeal under Rule 87(3) of the Court of Appeal Rules

Key legal issues

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01

Whether the disputed list of persons was part of the record before the High Court

Holding

The list was not part of the record before the High Court; it was not annexed to the verifying affidavits, not mentioned in the plaintiffs' list of documents, and not referred to by any witness.

Reasoning

The court perused the entire record and found no annexation of the list to the verifying affidavit of the plaint or amended plaint, no mention in the plaintiffs' list of documents and no reference by witnesses. The court reasoned that a list of over 200 pages could not have escaped the trial judge's attention or that of counsel, and would have generated cross-examination questions had it been on record. The appellants had misconstrued the trial judge's recital of the plaint as an acknowledgement of a representative suit.

p. 3
02

Whether the documents should be expunged from the record of appeal

Holding

The documents at pages 18 to 255 are expunged from the record of appeal under Rule 87(3).

Reasoning

Rule 87(3) confers power on the Court or the Registrar to exclude documents which should not form part of the record, one pertinent reason being that they were not before the trial court and were irregularly included without leave. Sneaking in such documents at the appeal stage was irregular, unprocedural and tantamount to abuse of the process of the court. The application was allowed with costs in the substantive appeal.

p. 3

Legal principles established

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  • Rule 87(3) empowers the Court of Appeal or the Registrar to exclude from the record of appeal documents that were not part of the record before the trial court and were irregularly included without leave.
  • Including documents in a record of appeal that were not part of the trial court record, without leave, is irregular, unprocedural and an abuse of the process of the court.

Court orders

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  1. 1.The application dated 6th November 2018 is allowed
  2. 2.Documents contained between page 18 to page 255 of the record of appeal are expunged from the record of appeal
  3. 3.Costs of the application are in the substantive appeal

The bench

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

majority
majority
Martha Karambu Koome
M. K. KoomeJA
Currently serving
majority
On appeal from
Environment and Land Court at Mombasa
Civil Suit No. 227 of 2012
Jurisdiction invoked
Rule 87(3) Court of Appeal Rules

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.

One such pertinent reason would be that the documents in question were not part of the record before the trial court and have been irregularly, and without leave of the court been included in the record of appeal.
p. 2Rule 87(3) power to exclude documents
We also find that sneaking it in at this point is not just irregular and un procedural, but tantamount to abuse of the process of the court.
p. 3Abuse of process in compiling record of appeal
The application is hereby allowed with the result that documents contained between page 18 to page 255 be and are hereby expunged from the record of appeal. Costs of this application will be in the substantive appeal.
p. 3Final orders

Issues in the judgment

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minor

Inconsistent page range in orders: the application and affidavit refer to documents at pages 18 to 256, but the operative order expunges documents 'between page 18 to page 255'.

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, "Joseph Sombo & 4 others v Nyari Investments & 5 others [2019] KECA 775 (KLR)", Case Analysis (2019). Civil Appeal No. 23 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/775/eng@2019-05-09

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