Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2006] KECA 206 (KLR)
The bottom line
#Kenya's Court of Appeal removed a lawyer's notice of appointment and an affidavit from the case record, warning advocates their filings can be struck out.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 'Notice of Appointment of Advocate' by Mr. Kiage and the affidavit sworn by retired Justice of Appeal A.B. Shah, both already on the record, should be allowed to remain as valid documents on the record of the appeal.
Key legal issues
#Whether the 'Notice of Appointment of Advocate' by Mr. Kiage and the affidavit sworn by retired Justice of Appeal A.B. Shah should remain as valid documents on the record of the appeal.
The court ordered that both documents be expunged from the record, having concluded that their retention was not desirable; it reserved its full reasons for the final ruling on the substantive application to set aside the judgment in Civil Appeal No. 63 of 2001.
The full bench deliberated ('seriously agonized') on whether a notice of appointment of advocate filed by Mr. Kiage and an affidavit sworn by a retired Justice of Appeal, A.B. Shah, both already on the record, should remain as valid documents. Concluding that their retention was 'not desirable', the court exercised its control over its own record and ordered expungement. Because the substantive application - to set aside in toto the judgment of 30 September 2002 in Civil Appeal No. 63 of 2001 - remained pending, the court reserved its full reasons for the final ruling and made no order as to the costs of the two days of proceedings.
Legal principles established
#- The Court of Appeal may expunge from its own record documents whose retention it considers undesirable - including a notice of appointment of an advocate and an affidavit - and may make such an order forthwith, reserving its reasons to the final ruling on the substantive application.
- A court may decline to make any order as to the costs of interlocutory proceedings, leaving each party to bear its own costs of those proceedings.
Court orders
#- 1.The 'Notice of Appointment of Advocate' by Mr. Kiage and the affidavit sworn by retired Justice of Appeal A.B. Shah are expunged from the record.
- 2.The full reasons for the expungement order are to be given in the Court's final ruling on the application.
- 3.No order as to the costs occasioned by the proceedings of 24th May, 2006 and of 9th June, 2006.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal of Kenya
- Civil Appeal No. 63 of 2001
- Jurisdiction invoked
- Not stated in the order; no constitutional or statutory provision is invoked in the text. The application is an interlocutory application in the Court of Appeal's appellate jurisdiction (Civil Application No. 30 of 2003) seeking exercise of the Court's power over its own record and its own judgment in Civil Appeal No. 63 of 2001.
Relief refused
#Setting aside in toto of the judgment and order made on 30 September 2002 in Civil Appeal No. 63 of 2001 (the principal relief sought by the application).
Not granted in this order; the court deferred determination of the substantive application and expressly reserved its full reasons for its final ruling.
Costs
No order as to costs: 'We make no order as to the costs occasioned by the proceedings of 24th May, 2006 and of to-day.' (i.e. the proceedings of 24th May, 2006 and of 9th June, 2006, the date of this order); each party thereby bears its own costs of those proceedings.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We have come to the conclusion that it is not desirable to retain those documents on record and we order that they be and are hereby expunged from the record.
We shall give our full reasons for this order in the Court’s final ruling.
We make no order as to the costs occasioned by the proceedings of 24th May, 2006 and of to-day.
Issues in the judgment
#The day of the September 2002 decision sought to be set aside is garbled in the source text ('301day'); it has been read as the 30th, so the recorded decision date of 30 September 2002 cannot be confirmed from the document.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2006] KECA 206 (KLR)", Case Analysis (2006). Civil Application No. 307 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/206/eng@2006-06-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.