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Court of AppealStruck OutCivil Appeal No 49 of 2006· [2006] KECA 352 (KLR)

Hassan v Githaiga & 2 others

Court of Appeal of Kenya
21 July 2006
577 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an election appeal because a key document was missing from the appeal record — an adjournment could not fix it.

What this practically means

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Executive summary

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This was an appeal to the Court of Appeal at Mombasa against the judgment and decree of Khaminwa J in High Court Election Petition No 6 of 2003, delivered on 10 February 2006. At the hearing, counsel for the appellant (Mr Mutula Kilonzo Junior) applied for an adjournment, seeking to verify whether documents omitted from the record of appeal formed part of the evidence and could be introduced by a supplementary record of appeal under rule 85(1)(f) of the Court of Appeal Rules. Counsel conceded other irregularities in the record. Counsel for the respondents opposed the adjournment and raised a preliminary objection to the competence of the appeal, citing authority to the effect that failure to include a primary document in the record of appeal is an incurable defect rendering the appeal incompetent. The court found that a document read in evidence in the election petition (pages 540-547 of the record) had been omitted from the record of appeal. It held that such a primary document cannot be introduced by a supplementary record of appeal, and that its omission undoubtedly rendered the appeal incompetent. The court further held that the law on omission of primary documents was well settled and declined to hear further argument. The application for adjournment was dismissed as futile - an adjournment would merely postpone the day of reckoning - and the appeal was struck out as incompetent, with costs to the respondents. The decision affirms that a complete record of appeal, including all primary documents, is a jurisdictional prerequisite to a competent appeal.

Key legal issues

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01

Whether the omission of a primary document from the record of appeal renders the appeal incompetent

Holding

Yes. A primary document omitted from the record of appeal cannot be introduced by a supplementary record, and its omission renders the appeal incompetent.

Reasoning

The court found that a document read in evidence in the election petition (pages 540-547 of the record) was omitted from the record of appeal. Relying on settled law and the authority cited by the respondents, the court held that failure to include a primary document is an incurable defect. Adjournment would merely postpone the inevitable, so the appeal was struck out.

p. 1

Legal principles established

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  • Omission of a primary document from the record of appeal is an incurable defect that renders the appeal incompetent and cannot be cured by a supplementary record or an adjournment

Court orders

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  1. 1.The application for adjournment is dismissed
  2. 2.The appeal is struck out as incompetent
  3. 3.Costs of the application and appeal awarded to the respondents

Authorities

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Legislation

  • Court of Appeal Rules (cap 9 Sub Leg)rule 85(1)(f)
  • Court of Appeal Rules (cap 9 Sub Leg)rule 101(b)

Cases cited (1)

  • [1982] KLR 185
    [1982] KLR 185

    Failure to include a primary document in the record of appeal is an incurable defect rendering the appeal incompetent.

On appeal from
High Court of Kenya at Mombasa
High Court Election Petition No 6 of 2003
Jurisdiction invoked
Court of Appeal Rules (cap 9 Sub Leg), rules 85(1)(f) and 101(b); appeal from an election petition decided by the High Court

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, "Hassan v Githaiga & 2 others", Case Analysis (2006). Civil Appeal No 49 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/352/eng@2006-07-21

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