A.H. LALJI vs B.H. LALJI & 3 OTHERS [2000] KECA 231 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal because the order being appealed was defective and could not be fixed with a supplementary affidavit.
What this practically means
#Executive summary
#Key legal issues
#Whether a defective primary document in a record of appeal can be amended or brought on record by way of a supplementary affidavit.
No. A defective primary document cannot be amended or brought on record by supplementary affidavit, and the defect renders the whole appeal incompetent.
Owuor JA grounded the holding in what he described as numerous recent authorities of the Court, specifically Trimborn Agricultural Engineering Limited v David Njoroge Kabaiko and Kenya Shield Security Limited and Pepco Construction Company Limited v Carter & Sons Limited. Because the order filed was the primary document underpinning the appeal, its defectiveness went to the competence of the appeal itself and could not be cured by a supplementary affidavit, which is no substitute for a proper primary document on the record.
Whether the order filed in the record of appeal was defective.
Yes - it was incurably defective because it incorporated an order relating to another ruling not subject matter of the appeal and contained an amendment whose origin could not be ascertained.
The court examined the content of the order complained of and found two independent defects: it embraced an order made in respect of a ruling that was not the subject matter of the present appeal, and it contained an amendment whose origin could not be traced. Either defect undermined the order as the primary document supporting the appeal, and together they made the defect incurable rather than one capable of amendment.
What evidence is required where the authenticity of an amendment to an order is in dispute.
There must be some evidence establishing the authenticity of the amendment.
Adopting the definition of an amendment in Jowitt's Dictionary of English Law as the correction of an error or omission or the curing of a defect in judicial proceedings, the court reasoned that an amendment of unascertainable origin cannot stand. Where the identity of the person who effected the amendment and the stage of the proceedings at which it was made are both in dispute, evidence of its authenticity is required; in the absence of such evidence the amended order is incurably defective.
Legal principles established
#- A defective primary document in a record of appeal cannot be amended or brought on record by way of a supplementary affidavit; such a defect renders the whole appeal incompetent.
- Where it is disputed who effected an amendment to an order and at what stage of the proceedings it was made, there must be evidence establishing the authenticity of the amendment.
Court orders
#- 1.Objection to the order in the record of appeal upheld - the order held incurably defective, rendering the whole appeal incompetent (no formal order or costs order is reproduced in the document as provided).
- Jurisdiction invoked
- Not stated in the ruling; the Court of Appeal determined the competence of Civil Appeal No. 52 of 1999 in exercise of its appellate jurisdiction, citing no constitutional or statutory provision in the document.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "A.H. LALJI vs B.H. LALJI & 3 OTHERS [2000] KECA 231 (KLR)", Case Analysis (2000). Civil Appeal 52 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/231/eng@2000-04-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.