Hassan v Githaiga & 2 others
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the omission of a primary document from the record of appeal renders the appeal incompetent
Yes. A primary document omitted from the record of appeal cannot be introduced by a supplementary record, and its omission renders the appeal incompetent.
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.
Legal principles established
#- 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
#- 1.The application for adjournment is dismissed
- 2.The appeal is struck out as incompetent
- 3.Costs of the application and appeal awarded to the respondents
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.