Institute for Social Accountability & another v National Assembly of Kenya & 4 others
The bottom line
#Supreme Court allows exclusion of missing trial notes, refuses to strike out appeal for incomplete record.
What this practically means
#The Supreme Court of Kenya ruled that an appeal is not automatically thrown out if some documents are missing from the record. The court allowed the appellants to exclude trial notes of a retired judge they could not find, because they had tried hard to get them. The court also rejected a request to strike out the entire appeal, noting that request was made in bad faith right after a court mention. The key point: missing documents do not always kill an appeal if you have a good reason.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether or not to exclude the trial notes by Justice Rtd G.B.M. Kariuki of the Court of Appeal
- 2.Whether the record of appeal should be struck out as sought by the 4th respondent
Key legal issues
#Whether the trial notes of a retired Court of Appeal judge should be excluded from the record of appeal under Rule 335 of the Supreme Court Rules.
The court allowed the exclusion of the trial notes, finding that the appellants exercised due diligence, the notes were untraceable, and their omission would not fundamentally affect the record given the unanimous judgment below.
The court noted that the appellants had made diligent efforts to obtain the notes since September 2019, but the judge had retired and the notes were unavailable. The court found no purpose in stalling the appeal for a document on which nothing might eventually turn, especially since the Court of Appeal judgment was unanimous. The court also emphasized the public interest in determining the constitutional questions raised without further delay.
Whether the record of appeal should be struck out for being incomplete due to the missing trial notes.
The court refused to strike out the appeal, finding that the 4th respondent's application was not made in good faith and that the omission was sufficiently explained.
The court observed that the 4th respondent filed its application to strike out just one day after a mention before the Deputy Registrar and three days before the appellants could file their formal application under Rule 335. The court considered this timing as indicative of sharp practice. It also noted that the appellants had earlier indicated their intention to seek exclusion of the notes orally, which was permissible under Rule 335 until directed otherwise.
Legal principles established
#- Missing a required document in the record of appeal does not automatically make the appeal invalid.
- The court may allow the missing document to be filed later or excluded if a sufficient explanation is given.
- An application to strike out an appeal will be dismissed if it is made in bad faith, for example, right after a mention to preempt the other party.
- Due diligence in trying to obtain a missing document (like a retired judge's notes) can save the appeal from being struck out.
- Public interest in resolving constitutional questions can outweigh strict procedural requirements.
- A unanimous Court of Appeal judgment means missing trial notes may not affect the outcome, so excluding them is practical.
Court orders
#- 1.The Appellants' application dated and filed on February 10, 2020 is allowed
- 2.Consequently, the 4th Respondent's application dated 5th February, 2020 and filed on February 7, 2020 is disallowed
- 3.Costs shall be in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Striking out the record of appeal
The court found the 4th respondent's application was not made in good faith and the omission was sufficiently explained
Costs
Costs shall be in the appeal
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.
It therefore emerges that failure to include the 'record of proceedings of the Court of Appeal' in the Record of Appeal does not automatically render the appeal filed before this Court fatal.
where a required document lacks in the Record of Appeal, devoid of a sufficient explanation for the omission, is a ground for the striking out of that Record of Appeal.
There is no purpose to be served by stalling the appeal and continuing to wait for a document on which nothing might eventually turn.
Key timeline
#Practical implications
#Handling incomplete records on appeal
When a required document is missing, file a formal application under Rule 335 of the Supreme Court Rules as soon as possible. Document your efforts to obtain the document (e.g., correspondence, searches). Be wary of the other side moving to strike out immediately after a mention; such timing may be seen as sharp practice. If the missing document is unlikely to change the outcome (e.g., unanimous lower court judgment), the court may allow exclusion.
Procedural fairness in constitutional cases
If your business is involved in a constitutional challenge at the Supreme Court (e.g., regarding devolution funds), know that the court prioritizes resolving the substantive issues over procedural technicalities. A missing document will not automatically derail the case if you show good faith efforts. However, be cautious about filing strike-out applications too quickly – the court may penalize such tactics with costs or dismissal.
Your rights when records are incomplete
If you are a party in a Supreme Court appeal and the other side has missing documents, you cannot simply ask the court to throw out the case. The court will look at whether the missing documents were sought diligently and whether they are essential. If the missing part is minor or the lower court judgment was unanimous, the appeal will likely continue. Always act in good faith and avoid procedural gamesmanship.
Frequently asked questions
#Can a Supreme Court appeal be struck out for missing documents in Kenya?+
Yes, but only if the missing document is required and there is no sufficient explanation for the omission. The court has discretion to allow the missing document to be filed later or excluded. In this case, the court refused to strike out because the missing trial notes were untraceable despite due diligence, and the lower court judgment was unanimous.
What is Rule 335 of the Supreme Court Rules in Kenya?+
Rule 335 allows a party to apply to the Supreme Court to exclude a document from the record of appeal if it cannot be obtained despite diligent efforts. The court may grant the application if the omission does not fundamentally affect the record. This was the rule used by the appellants to exclude the missing trial notes of a retired judge.
How do I get trial notes of a retired judge for an appeal in Kenya?+
You must demonstrate due diligence by showing attempts to obtain the notes from the court registry, the judge's former chambers, and any other possible source. If the notes are untraceable, you can apply under Rule 35 of the Supreme Court Rules (likely Rule 335) to exclude them. The court will consider whether the omission is material and whether the lower court judgment was unanimous.
What happens if an application to strike out is made in bad faith in Kenya's Supreme Court?+
The court will disallow the application and may award costs against the applicant. In this case, the 4th respondent filed its strike-out application one day after a mention and before the appellants could file their exclusion application. The court called this 'not in good faith' and dismissed it, ordering costs in the appeal.
Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Raindrops Limited v County Government of Kilifi (Civil Application E057 of 2021) [2024] KECA 174 (KLR)[2024] KECA 174 (KLR)23 Feb 2024followed
- Pharmacy and Poisons Board v George Wang’anga & 5 others [2020] KECA 775 (KLR)[2020] KECA 775 (KLR)24 Apr 2020
Cite this brief
#Cite this brief
Caselaw, "Institute for Social Accountability & another v National Assembly of Kenya & 4 others", Case Analysis (2020). Petition 1 of 2018. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2020/74/eng@2020-08-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.