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Court of AppealPartially AllowedCivil Appeal (Application) 213 of 2008

Premier Dairy Ltd v Amarjit Singh Sagoo & another

Court of Appeal
17 July 2009
ROR.S.C. OmoloSBS.E.O. BosireEGE.M. Githinji
1,660 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The 2nd respondent in the appeal, Kurshbikaur Harjeet Singh Chandha, applied under rules 42(1), 80, 85(1)(2) and (4) of the Court of Appeal Rules to strike out Premier Dairy Ltd's appeal (No. 213 of 2008) from the judgment of Warsame J. in H.C.C.C. No. 61 of 2001. The grounds were that the record contained an uncertified copy of decree, that the copies of judgment and decree were at variance as to the date of delivery of the judgment, that certain primary documents were omitted, and that the appeal was lodged out of time. The last ground was abandoned. The appellant conceded the decree copy was uncertified and that the judgment bore the wrong delivery date, but argued that a decree properly drawn, signed and sealed by the Deputy Registrar sufficed, and that reliance on court-furnished documents excused the defects. The Court of Appeal held that a certified copy of decree is a primary document required by rule 85(1)(h); certification is distinct from sealing and is meant to guarantee correctness, so the omission was not curable. It further held that the copy of judgment, bearing the wrong delivery date, did not accord with O.XX rule 3 of the Civil Procedure Rules and rendered the appeal incompetent, and that a litigant must verify the accuracy of documents furnished by the court. The application was allowed, the appeal struck out, with costs of both the application and the appeal to the applicant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the record of appeal containing an uncertified copy of decree is competent
  2. 2.Whether a copy of decree drawn, signed and sealed but not certified satisfies rule 85(1)(h)
  3. 3.Whether the variance in the date of delivery of the judgment between the copy of judgment and decree renders the appeal incompetent
  4. 4.Whether reliance on documents furnished by the superior court excuses defects in the record of appeal

Key legal issues

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01

Certification of the copy of decree under rule 85(1)(h)

Holding

An uncertified copy of decree, even if properly drawn, signed and sealed, does not satisfy rule 85(1)(h) and the omission is not curable by supplementary record.

Reasoning

The court distinguished certification from sealing: certification gives the superior court an opportunity to look afresh and confirm the decree represents its adjudication. A certified copy of decree is a primary document that cannot be introduced by supplementary record under rules 85(2A) or 89(3). The court followed its prior rejection of the same argument in Damaris Wangui Elizabeth.

p. 3
02

Variance in the date of delivery of the judgment

Holding

A copy of judgment bearing the wrong date of delivery does not accord with O.XX rule 3 and its inclusion instead of the correct judgment renders the appeal incompetent.

Reasoning

The copy of judgment in the record showed delivery on 20th September 2007 when it was common ground the judgment was delivered on 25th September 2007. The appellant knew the correct date and was obliged to make inquiry from the court as to why the date differed; the court's duty to furnish correct documents does not excuse the litigant.

p. 3
03

Appeal lodged out of time

Holding

This ground was abandoned by the applicant and was not for consideration.

Reasoning

Mr Gichaba for the applicant abandoned the ground that the appeal was filed out of time, so the court did not determine it.

p. 2

Legal principles established

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  • A certified copy of the decree is a primary document required by rule 85(1)(h); a copy that is merely signed and sealed does not suffice and the omission is not curable.
  • Certification is meant to guarantee correctness by allowing the superior court to confirm afresh that the decree represents its decision.
  • A copy of a judgment included in the record of appeal must accord with O.XX rule 3 of the Civil Procedure Rules; failure renders the appeal incompetent.
  • A litigant cannot rely blindly on documents furnished by the court and must verify their accuracy.

Court orders

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  1. 1.Civil Appeal No. 213 of 2008 be and is hereby struck out
  2. 2.Costs of both the application and the appeal awarded to the applicant against the respondent (the appellant in the appeal)

The bench

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One judgment of the whole court — no separate or dissenting opinions.

RO
majority
SB
majority
EG
majority
On appeal from
High Court of Kenya at Kisumu
H.C.C.C. No. 61 of 2001
Jurisdiction invoked
Court of Appeal Rules, rules 42(1), 80, 85(1)(2) and (4)

Relief refused

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Appellant's plea that reliance on court-furnished documents excuses the defective record

A litigant must satisfy himself that documents given by the court are accurate

p. 3

Costs

The costs of both the application and the appeal are awarded to the applicant against the respondent, the appellant herein.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

A certified copy of decree is a primary document.
p. 3rule 85(1)(h) - certified decree
Certification is meant to guarantee correctness.
p. 3purpose of certification
It is quite clear that the copy included in the appellant’s record of appeal does not satisfy that legal requirement and thus renders the appeal incompetent.
p. 3defective copy of judgment
This does not however, excuse a litigant from satisfying himself or herself that the document given to him or her by a court on request are accurate or reflect the correct position.
p. 3litigant's duty to verify court-furnished documents
we allow the application dated and filed in Court on 17th October 2008 and order that Civil Appeal No. 213 of 2008 be and is hereby struck out.
p. 3final orders

Issues in the judgment

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minor

Neutral citation differs between header and body of the judgment

minor

Party role inconsistency: Premier Dairy Ltd labelled APPLICANT in heading but 'the appellant' in the body

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, "Premier Dairy Ltd v Amarjit Singh Sagoo & another", Case Analysis (2009). Civil Appeal (Application) 213 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/469/eng@2009-07-17

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