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Court of AppealAllowedNot stated in the judgment· [2001] KECA 235 (KLR)

Manchester Outfitters Suiting Division Ltd & another v Standard Chartered Financial Services Ltd & another [2001] KECA 235 (KLR)

Court of Appeal of Kenya
13 July 2001
EOE. O. O'Kubasu
999 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed Mohan Galot's application to add missing documents to an appeal record, confirming parties cannot pick and choose what goes on record.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi, delivered by O'Kubasu JA on 13 July 2001, on a notice of motion brought under Rules 42, 85(2A) and 89(3) of the Court of Appeal Rules. The appellants, companies chaired by Mohan Galot, sought leave to file a Supplementary Record of Appeal and an order deeming the supplementary record already filed and served to be duly filed. The supplementary record comprised the parties' written submissions in the High Court, which had been omitted because they were not supplied by the High Court registry, and interlocutory proceedings that took place after the appeal was lodged on 2 May 2000 or after judgment. At the hearing, counsel for the respondents, while not opposing the application, asked the court to exclude certain documents he considered irrelevant, noting that the record already contained many irrelevant documents. The court recalled its earlier dismissal, by Omolo, Shah and O'Kubasu JJ.A, of the respondents' application to strike out the appeal, in which it had held that a party has no discretion to exclude any document from the record unless rule 85(3) is invoked, and that the trial court's notes are essential documents whose non-inclusion renders an appeal incompetent. Finding no merit in the relevance objection, and holding it too early to declare the documents irrelevant, the court allowed the application, granted leave, deemed the supplementary record duly filed and served, and made no order for costs.

Key legal issues

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01

Whether leave should be granted to file a supplementary record of appeal containing documents omitted from, or arising after, the original record

Holding

The application was allowed; leave was granted and the supplementary record already filed was deemed duly filed and served.

Reasoning

The supplementary record consisted principally of written submissions filed in the superior court that were missing from the original record, and of interlocutory proceedings that took place after the appeal was lodged and could not have been included originally. The court found the documents necessary for the proper determination of the appeal and fell within Rules 85(1)(k) and 89(3).

p. 3
02

Whether the respondents' objection that certain documents in the record were irrelevant should be upheld

Holding

The objection was rejected; it was premature to declare the documents irrelevant.

Reasoning

The court recalled its earlier ruling dismissing the application to strike out the appeal, in which it held that trial court's notes are essential documents regardless of relevance and that rule 85(3) allows essential documents omitted by oversight to be brought on record with leave. Mr. Le Pelley's reliance on the Commercial Bank of Africa case did not persuade the court to exclude the documents at this stage.

p. 3

Legal principles established

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  • A party to an appeal has no discretion to exclude documents from the record of appeal without invoking rule 85(3); the trial court's notes are essential documents whose non-inclusion renders the appeal incompetent.

Court orders

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  1. 1.The applicants are granted leave to file a Supplementary Record of Appeal
  2. 2.The Supplementary Record of Appeal already filed by the Appellants/Applicants and served on the Respondents is deemed to have been duly filed and served
  3. 3.No order for costs

Authorities

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Legislation

  • Court of Appeal RulesRule 42
  • Court of Appeal RulesRule 85(1)(c)
  • Court of Appeal RulesRule 85(1)(k)
  • Court of Appeal RulesRule 85(2A)
  • Court of Appeal RulesRule 85(3)
  • Court of Appeal RulesRule 85(4)
  • Court of Appeal RulesRule 89(3)

Cases cited (1)

  • Commercial Bank of Africa Limited vs. I.C. Kamau
    Civil Appeal (Application) No. 257 of 1997 (unreported)
On appeal from
High Court of Kenya
Not stated in the judgment
Jurisdiction invoked
Rules 42, 85(2A) and 89(3) of the Court of Appeal Rules

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, "Manchester Outfitters Suiting Division Ltd & another v Standard Chartered Financial Services Ltd & another [2001] KECA 235 (KLR)", Case Analysis (2001). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/235/eng@2001-07-13

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