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Court of AppealOtherCivil Appeal No. 63 of 2001

Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 13 others [2002] KECA 186 (KLR)

Court of Appeal
1 July 2002
ASA. B. ShahEOE. O. O'KubasuMKM. Ole Keiwua
785 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that lawyers may cite any part of the appeal record, and High Court legal statements do not bind it.

What this practically means

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Executive summary

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This is an interlocutory ruling delivered by the Court of Appeal at Nairobi (Shah, O'Kubasu and Keiwua, JJ.A) on 1st July 2002 in an appeal against a ruling of Ransley CA (Commissioner) of 10th November 2000 in H C Winding Up Cause No. 44 of 1999, a family/company winding-up dispute involving extensive allegations of fraud. During Mr. Oraro's response to Mr. Inamdar's submissions in support of the appeal, Mr. Nowrojee, for the 11th respondent, objected to Mr. Oraro referring to two inconsistent portions of the ruling under appeal - one recording that serious fraud allegations must be taken as likely to succeed, the other adopting the North Holdings principle that striking out should occur only in a clear case - and asking the Court to prefer one over the other. Mr. Nowrojee further objected to counsel referring to affidavits in the record to show the fraud allegations were unassailable, and Mr. Amoko adopted those objections. The Court overruled all the objections, holding that a statement of law by the High Court does not bind it and that it may agree or disagree; that it is the Court's bounden duty to read and understand the record of appeal; and that no counsel may be prevented from referring to or commenting on any part of the record, including all affidavits. It made no express finding on the merits of the affidavit objection, overruling it so the hearing could continue in an orderly manner. No costs order was made and the decision below was not disturbed at this stage.

Questions the Court framed

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

  1. 1.Whether counsel for the appellants could refer to two inconsistent portions of the ruling appealed against and ask the Court to accept one as more correct than the other
  2. 2.Whether counsel could refer to affidavits filed in support of and in response to the petition to show that allegations of fraud were unassailable
  3. 3.Whether the Court could be prevented from reading and considering any part of the record of appeal

Key legal issues

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01

Whether a party may invite the appellate court to prefer one passage of the ruling under appeal over another

Holding

The objection was overruled; counsel may comment on any part of the ruling and the record, and the Court retains the function of agreeing or disagreeing with the High Court's exposition of law

Reasoning

The Court emphasised that it had not yet heard full argument and was not making final findings. It reasoned that the High Court's statements of law are not binding on the appellate court, whose function is to review them. It also held that the record of appeal, including all affidavits, is fully open to counsel's comment and to the Court's own reading.

p. 2
02

Whether counsel may refer to affidavits in the record to show that allegations of fraud are unassailable

Holding

The objection was overruled without any express finding on its merits

Reasoning

The Court declined to make any express finding on the objection, choosing only to overrule it so that hearing could proceed. It affirmed that no one can stop the Court from thoroughly reading the record of appeal and that counsel may refer to and comment on any part of it, including all affidavits.

p. 2

Legal principles established

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  • A statement or exposition of law made by the High Court does not bind the Court of Appeal, which is free to agree or disagree with it
  • It is the bounden duty of the Court of Appeal to read and understand the record of appeal and to hear all counsel on its contents; no counsel may be stopped from referring to or commenting on any part of the record

Court orders

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  1. 1.Overruling Mr. Nowrojee's objection to counsel referring to two portions of the ruling appealed against
  2. 2.Overruling Mr. Nowrojee's further objection to counsel referring to affidavits in the record
  3. 3.Overruling Mr. Amoko's objection adopting Mr. Nowrojee's submissions
  4. 4.Inviting Mr. Oraro to continue with his submissions

The bench

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

AS
majority
EO
majority
MK
majority
On appeal from
High Court at Milimani
H C Winding Up Cause No. 44 of 1999
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over a ruling and order of the High Court (appeal pending from H C Winding Up Cause No. 44 of 1999)

Relief refused

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Counsel's objection that the appellants could not pick and choose between portions of the ruling

The Court held that a statement of law by the High Court is not binding on it and it may agree or disagree

p. 2

Costs

No costs order made in this ruling

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.

It must be borne in mind that a statement or exposition of law or legal position made by the High Court is not binding on us. We may agree, or disagree. That is the function of this Court.
p. 2Non-binding nature of High Court statements of law on the Court of Appeal
In fact it is the bounden duty of this Court to read and understand the record and for that purpose it is the bounden duty of this Court to hear all counsel when they refer to the contents of the record.
p. 2Duty of the appellate court to read the record and hear counsel
We will not stop any counsel from referring to and commenting on any part or portion of the record of appeal including all affidavits therein.
p. 2Counsel's freedom to address the whole record
Having overruled Mr. Nowrojee on his objections we now invite Mr. Oraro to continue with his submissions. We want to conclude the hearing of this appeal in an orderly manner.
p. 3Disposition of the objections

Issues in the judgment

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minor

The text of the ruling contains a typographical corruption where two passages appear to have been merged, garbling the word 'objection'

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 13 others [2002] KECA 186 (KLR)", Case Analysis (2002). Civil Appeal No. 63 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/186/eng@2002-07-01

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