STEPHEN E.C. NGALA v BURKA AHMED SALIM & another [2006] KECA 159 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal because the appellant left out key lower-court documents, confirming parties cannot choose what goes into the record.
What this practically means
#Executive summary
#Key legal issues
#Whether a record of appeal omitting the pleadings, proceedings and judgments of the two lower courts is incompetent under rule 85 and should be struck out under rule 80.
Yes. The omitted documents were a necessary part of the material considered by the superior court in arriving at the decision challenged; their omission renders the record of appeal incompetent.
Rule 85(1) and (2) enumerate the documents that must be contained in a record of appeal in both the superior court's original and appellate jurisdictions. The rule itself makes no mention of primary or secondary documents; that distinction is settled judicially, and primary documents (pleadings, proceedings, judgments, interlocutory orders and exhibits) must be included unless specifically excluded by a judge's direction under rule 85(3). Because the omitted documents were admittedly before the superior court and necessary to its decision, the record was incurably defective and incompetent, and the rule 80 application had to succeed.
Whether, where the decision appealed arises from a review application in the superior court, the lower courts' materials are irrelevant to the record.
No. The matters of the original suit and the appeal to the superior court are inextricably intertwined; the review decision was made in the superior court's appellate jurisdiction, so the lower court's pleadings and decision were necessary parts of the record.
The dispute commenced in the subordinate court, went on appeal to the High Court, which dismissed it, and the aggrieved party then sought review of that appellate judgment. The ruling under challenge was therefore made in the superior court's appellate jurisdiction. For an appellate court to interfere with the exercise of judicial discretion of the court below, all the material that was before that court must first be examined to determine whether the judge erred in principle or was plainly wrong. Documents filed after the decision appealed from may be superfluous, but everything considered by the judge is essential.
Whether a party may decide which documents to include in the record of appeal, or whether exclusion is governed solely by rule 85(3).
A party has no discretion to exclude any document from the record of appeal; exclusion is possible only by a direction of a judge or registrar of the superior court under rule 85(3), which may be sought informally.
The Court endorsed its earlier decision in Commercial Bank of Africa Ltd v Ndirangu, which defined primary and secondary documents and held that the omission of any primary document renders an appeal incurably defective. Rule 85(3) specifically vests the power to direct exclusion of documents in the superior court; had the rules-making authority intended parties to have that choice, there would have been no need to vest the power in the court. The appellant's unilateral decision to exclude the lower courts' pleadings, proceedings and judgments therefore did not accord with the rules.
Legal principles established
#- A record of appeal that omits the pleadings, proceedings and judgments of the lower courts - primary documents mandatorily required under rule 85 - is incompetent and liable to be struck out under rule 80, and this binds the High Court and subordinate courts.
- Where the decision challenged on appeal was made in the superior court's appellate jurisdiction (such as a review of its appellate judgment), the pleadings and decision of the lower court must form part of the record of appeal.
- A litigant has no discretion to choose which documents go into the record of appeal; documents may be excluded only by a direction of a judge or registrar of the superior court under rule 85(3).
- An appellate court cannot interfere with a trial court's exercise of judicial discretion unless all the material that was before that court is first examined.
Court orders
#- 1.The notice of motion dated 23rd December 2004 (the respondents' application under rule 80) is granted.
- 2.The record of appeal is struck out.
- 3.The striking out is with costs to the respondents.
- On appeal from
- High Court of Kenya at Mombasa
- H.C.C. Appeal No. 58 of 1998
- Jurisdiction invoked
- No constitutional or statutory jurisdictional provision is expressly invoked in the ruling; the appeal lies from an order of the High Court of Kenya at Mombasa (Maraga J) dated 16th November 2004, and the motion determined was brought under rule 80 of the rules of the Court of Appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "STEPHEN E.C. NGALA v BURKA AHMED SALIM & another [2006] KECA 159 (KLR)", Case Analysis (2006). Civil Appeal (Appli) 311 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/159/eng@2006-07-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.