Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealAllowed

Kairu v Shaw & 3 others [1985] KECA 63 (KLR)

Court of Appeal of Kenya
9 December 1985
418 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal allowed a rare application to add missing material to an appeal record because a lawyer's trial notes proved the omissions were real.

What this practically means

#

Executive summary

#
This Court of Appeal decision arose from an appeal against a High Court suit in which the plaintiff sought specific performance of a contract for the sale of land at an alleged agreed purchase price of Kshs 7m. Three days before the hearing, the plaintiff filed an application for leave to insert into the record of appeal certain omissions said to have been left out from the trial judge's notes of the trial, but which appeared in contemporaneous notes taken at the trial by Mr Muttu, counsel who assisted in the plaintiff's representation. It was said the omissions were vital and might affect the court's decision on the appeal. The court, per Madan Ag CJ, Kneller and Nyarangi JJA, described the application as novel in their long experience and emphasised the settled practice of accepting the trial judge's notes as correct, warning that a defeated party should not be allowed to attack the record every time a suit is lost. However, the court found the situation exceptional because the omissions were backed by Mr Muttu's contemporaneous notes and there was a real possibility of the omissions affecting the result. Leave was granted to insert the omissions and to call additional evidence before the High Court, preferably before the trial judge, so that Mr Muttu and the plaintiff could testify further while the defendants had a full opportunity to meet the material. The proceedings were remitted to the High Court for the hearing of the additional evidence, limited to the extent stated in the application, with costs in the appeal.

Questions the Court framed

#

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

  1. 1.Whether leave should be granted to insert into the record of appeal omissions said to have been left out from the trial judge's notes of the trial
  2. 2.Whether omissions from the trial judge's notes, backed by counsel's contemporaneous notes, could be admitted to the record and additional evidence taken

Key legal issues

#
01

Whether omissions from the trial judge's notes may be inserted into the record of appeal

Holding

The application, though novel and not to be encouraged as a matter of course, was allowed because the omissions were exceptionally backed by counsel's contemporaneous notes and might affect the outcome of the appeal.

Reasoning

The court stressed that trial judges' notes are normally accepted as correct and that defeated parties must not be permitted to attack the record at will. However, the exceptional feature here was that Mr Muttu's contemporaneous notes of the evidence corroborated the alleged omissions. Combined with the possibility that the omissions could affect the result of the appeal, the court found it just to allow the application and to secure a full opportunity for the defendants to meet the additional material.

p. 1
02

The appropriate manner of dealing with the supplemented record

Holding

The advisable course was to remit the proceedings to the High Court, preferably before the trial judge, so that the plaintiff and Mr Muttu could testify further and the defendants could fully respond.

Reasoning

Rather than decide the appeal on the supplemented record, the court considered it advisable for the additional evidence to be taken in the High Court, preferably before the learned judge who tried the suit. This preserved the fairness of the process: Mr Muttu and the plaintiff could testify further while the defendants retained a full opportunity to challenge the new material. The remittal was limited to the extent stated in the application.

p. 1

Legal principles established

#
  • The trial judge's notes are normally accepted as the correct record of the trial and will not readily be attacked by a defeated party.
  • Applications to supplement the record of appeal with omissions from the trial judge's notes will not be freely embraced, but may be allowed in exceptional circumstances where the omissions are corroborated and may affect the result of the appeal.

Court orders

#
  1. 1.Leave granted to insert the omissions into the record of appeal
  2. 2.Leave given to the plaintiff to call additional evidence before the High Court, preferably before the judge who tried the suit
  3. 3.Proceedings remitted to the High Court for hearing of additional evidence, limited to the extent stated in the application
  4. 4.Costs in the appeal

The bench

#

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

CM
majority

Wrote the judgment

majority
majority
On appeal from
High Court
Jurisdiction invoked
Inherent appellate jurisdiction of the Court of Appeal over appeals from the High Court (record of appeal and leave to adduce additional evidence)

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 is the practice, and a good practice it is, normally to accept the trial judge’s notes as correct.
p. 1Primacy of the trial judge's notes as the record
It would not do to allow the record of trial to be attacked by the defeated party every time a suit is lost.
p. 1Limits on attacking the record of appeal
We therefore order that the proceedings be remitted to the High Court for the hearing of additional evidence as indicated, and limited to the extent stated in the application.
p. 1Final orders - remittal for additional evidence
Costs in the appeal. So ordered.
p. 1Final orders - costs

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kairu v Shaw & 3 others [1985] KECA 63 (KLR)", Case Analysis (1985). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/63/eng@1985-12-09

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