Dickson Wathika Mwangi v Reuben Nyanginja Ndolo & 2 others [2009] KECA 96 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an election appeal because the appellant's court record omitted the judge's notes from the hearing that produced the decision.
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 record of appeal was fatally defective for omission of the trial Judge's notes of 23rd June 2008, being primary and essential documents
- 2.Whether the certified order appealed from was fatally defective
- 3.Whether the record of appeal was served outside the prescribed period
Key legal issues
#Compliance with rule 85(1)(d) on contents of the record of appeal
The omission of the Judge's notes and proceedings of 23rd June 2008 made the appeal fatally defective and incompetent, warranting striking out.
The record contained the Judge's notes only up to 26th May 2008, yet the decision appealed was made on 23rd June 2008 after submissions of counsel. Those notes are basic and primary documents required by rule 85(1)(d) and necessary for the proper determination of the appeal. Following Kemfro Africa Limited v Lubia, such an omission cannot be cured by a supplementary record, and counsel's explanation could not overlook the defect.
Legal principles established
#- A record of appeal must contain the trial Judge's notes of the proceedings that produced the decision appealed from; omission renders the appeal fatally defective and incompetent and cannot be cured by a supplementary record.
Court orders
#- 1.Civil Appeal No. 148 of 2008 struck out
- 2.Costs of the application and of the appeal awarded to the applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Election Petition No. 11 of 2008
- Jurisdiction invoked
- Court of Appeal Rules (rule 85(1)(d)) governing striking out of appeals for non-compliance
Relief refused
#First respondent's attempt to sustain the appeal notwithstanding missing Judge's notes of 23rd June 2008
The omitted documents are basic and primary and cannot be cured by a supplementary record
Costs
Civil Appeal No 148 of 2008 be and is hereby struck out with the costs of the application and of the appeal to the applicant.
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.
These documents are basic and primary documents which must be included in the record of appeal. See rule 85(1) (d).
it is well settled principle that the omission of a basic document in the record cannot be cured by the filing of a supplementary record. See Kemfro Africa Limited v Lubia & Another [1987] KLR 27.
It must follow therefore that the mandatory terms of rule 85(1) (d) of the Rules of this Court not having been complied with, the appeal is fatally defective and incompetent.
Accordingly, on this ground alone, the application is allowed. Consequently, Civil Appeal No 148 of 2008 be and is hereby struck out with the costs of the application and of the appeal to the applicant.
Issues in the judgment
#The applicant's grounds mention a certified order describing a hearing on 14th and 19th May 2008 leading to a ruling on 26th June 2008, which appears inconsistent internally, but the court did not resolve this ground as the application succeeded on the missing notes alone.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dickson Wathika Mwangi v Reuben Nyanginja Ndolo & 2 others [2009] KECA 96 (KLR)", Case Analysis (2009). Civil Appeal (Appli) 148 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/96/eng@2009-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.