Seventh Day Adventist Church East Africa Ltd & 2 others v M/S Masosa Construction Company Ltd (Civil Appeal 22 of 2004) [2005] KECA 311 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal because lawyers left trial exhibits out of the appeal record — a mistake no party can fix later.
What this practically means
#Executive summary
#Key legal issues
#Whether the omission of trial exhibits from the record of appeal contravenes rule 85(1)(f) and renders the record incurably defective.
Exhibits and documents put in evidence at trial are primary documents which must appear in the record of appeal under rule 85(1)(f); their omission renders the record incurably defective and the appeal incompetent, and such exhibits cannot be introduced by a supplementary record of appeal.
Rule 85(1)(f) obliges the record of appeal to contain the affidavits read and all documents put in evidence at the hearing. Adopting Mucuha v Ripples Ltd, the court classified trial exhibits as primary documents, distinct from secondary documents which alone may be added by supplementary record with leave. The appellants' counsel conceded the omission and advanced only an irrelevance argument, which cannot avail because exclusion for irrelevance is itself a decision reserved by rule 85(3) to the judge or Registrar. A record incurably defective in this way leaves the appeal incompetent and exposed to striking out.
Who holds the power to decide which documents may be excluded from a record of appeal.
The decision to exclude documents from a record of appeal is vested exclusively in a judge or Registrar of the superior court under rule 85(3); a party to an appeal or its counsel has no power to decide what should be excluded.
Rule 85(3) permits a judge or Registrar of the superior court, on application, to direct which documents or parts of documents should be excluded from the record. The court held that this confers the exclusion decision exclusively on the court below, not on parties or counsel. Counsel's unilateral election to omit exhibits, whether on grounds of necessity as in Zipporah Mukami or of relevance as here, is unsupported by the Rules. A party in doubt must apply under rule 85(3). The court endorsed Zipporah Mukami and Mucuha v Ripples Ltd as stating the established position.
Legal principles established
#- Only a judge or Registrar of the superior court may direct which documents are excluded from a record of appeal; a party or its counsel has no such power and cannot usurp it.
- Exhibits produced in evidence at trial are primary documents; their omission renders a record of appeal incurably defective and they cannot be introduced by way of supplementary record.
- Where primary documents are omitted from the record of appeal without a rule 85(3) direction, the appeal is incompetent and will be struck out.
Court orders
#- 1.The application to strike out the appeal is allowed.
- 2.Civil Appeal No 22 of 2004 is declared incompetent and is ordered struck out.
- 3.Costs of the appeal and of the motion are awarded to the respondent (the applicant, Masoso Construction Co Ltd).
- On appeal from
- Subordinate court (name not stated; origin of Civil Appeal No 22 of 2004)
- Jurisdiction invoked
- Notice of motion under rules 42, 80 and 85 of the Court of Appeal Rules and all 'Enabling provisions of the law' (no constitutional or statutory jurisdictional provision is cited)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Seventh Day Adventist Church East Africa Ltd & 2 others v M/S Masosa Construction Company Ltd (Civil Appeal 22 of 2004) [2005] KECA 311 (KLR)", Case Analysis (2005). Civil Appeal No 22 of 2004 (application to strike out the record of appeal; motion's own number not stated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/311/eng@2005-07-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.