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Court of AppealPartially AllowedCivil Appeal (Appli) 69 of 2008· [2009] KECA 381 (KLR)

Samuel Sang & another v Kenya Industrial Estate Limited [2009] KECA 381 (KLR)

Court of Appeal of Kenya
13 March 2009
ROR.S.C. OmoloPWP.N. WakiDAD.K.S. Aganyanya
360 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an appeal record missing a key trial document, ruling such an omission makes an appeal incurably defective.

What this practically means

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Executive summary

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In this interlocutory ruling, a three-judge bench of the Court of Appeal at Nairobi (Omolo, Waki and Aganyanya, JJA) determined a notice of motion dated 29th May 2008 seeking, inter alia, to strike out a record of appeal lodged on 25th April 2008 in an appeal against the judgment and decree of Visram, J. of the High Court at Nairobi dated 21st January 2004 in H.C.C.C. No. 994 of 1998. The court confined itself to one ground, which was conceded by the appellant: Exhibit I(c), a primary document produced during the hearing in the superior court, was missing from the record of appeal. Both counsel agreed, and the court agreed, that the exhibit was a primary document without which the appeal was rendered incurably defective. Holding itself bound to allow the application on that ground alone, the court struck out the record of appeal. On costs, the court noted that the applicant had conceded that some prayers in the motion were unnecessary and had apologized; the court deprived the applicant of the costs of the application but awarded the applicant the costs of the struck out appeal. The judgment contains no citations of authorities or statutes and no separate opinions; the panel acted unanimously. The ruling binds lower courts on the proposition that an appeal record omitting a primary trial exhibit is incurably defective.

Key legal issues

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01

Whether omission of a primary exhibit from the record of appeal justifies striking out the record

Holding

Yes - the omission of the primary document rendered the appeal incurably defective, so the court was bound to grant the striking-out application on that ground alone.

Reasoning

The appellant conceded that Exhibit I(c), a primary document produced during the hearing in the High Court, was not included in the record of appeal. Both counsel agreed the exhibit was a primary document without which the appeal was incurably defective. The court agreed and held itself bound to allow the application on that single ground, disregarding other grounds it deemed irrelevant.

p. 1

Legal principles established

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  • An appeal record that omits a primary exhibit produced at trial is incurably defective and must be struck out.

Court orders

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  1. 1.The record of appeal lodged on 25th April 2008 is struck out
  2. 2.The applicant is deprived of the costs of the application
  3. 3.The applicant shall have costs of the struck out appeal
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 994 of 1998
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal under the Constitution (appeal from the High Court); application to strike out a record of appeal

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, "Samuel Sang & another v Kenya Industrial Estate Limited [2009] KECA 381 (KLR)", Case Analysis (2009). Civil Appeal (Appli) 69 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/381/eng@2009-03-13

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