ABDI NASSIR NUH v ABDUREHEMAN HASSAN HALKANO & 2 others [2010] KECA 368 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal record because it omitted counsel's submissions, confirming missing primary documents cannot be fixed later.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether submissions by counsel, written or oral, are part of 'proceedings' / the trial judge's notes of the hearing within rule 85(1)(d) of the Court of Appeal Rules
- 2.Whether omission of the proceedings of 25th and 26th August 2008 from the record of appeal rendered the appeal incurably defective and incompetent
- 3.Whether the omission could be cured by a supplementary record under rule 89
- 4.Whether sections 3A and 3B of the Appellate Jurisdiction Act (overriding objective) could be invoked to save the defective record
Key legal issues
#Classification of counsel's submissions as primary documents
Counsel's submissions, written or oral, are an integral part of the proceedings and their omission from the record of appeal is fatal
The Court held that submissions are an important consideration by a judge in arriving at a decision, so they fall within the trial judge's notes of the hearing under rule 85(1)(d). Rule 85(1) enumerates documents in two categories, primary and secondary, and omission of any primary document renders an appeal incurably defective, following Commercial Bank of Africa v Ndirangu and Uhuru Highway Development Ltd v Central Bank of Kenya.
Impossibility of curing omission of primary documents
Primary documents cannot be brought into the record by supplementary record or by invoking sections 3A and 3B of the Appellate Jurisdiction Act
Relying on Uhuru Highway Development Ltd (per Omolo, JA) the Court confirmed that rule 89 only allows secondary documents omitted by oversight to be brought in with leave; primary documents (pleadings, judge's notes, exhibits, judgment, decree, notice of appeal) cannot be added by supplementary record. The overriding objective in sections 3A and 3B enriches but does not uproot established principle, so it cannot save an incurably defective record.
Responsibility for completeness of the record
The party lodging the record bears sole responsibility for including all documents required by the Rules and cannot blame the Court or Registrar
Counsel for the respondent argued that the omission was the Court's fault because the certified proceedings were certified as correct. The Court rejected this, holding that the record belongs to the lodging party, whose duty it is to ensure it contains all documents required by the Rules; certification by the Court provides no excuse for omission of primary documents.
Legal principles established
#- Submissions by counsel, whether written or oral, form part of the proceedings and are primary documents whose omission from a record of appeal renders the appeal incompetent and incurably defective
- The party lodging a record of appeal bears responsibility for its completeness and cannot shift blame for omissions onto the Court or the Registrar
- Sections 3A and 3B of the Appellate Jurisdiction Act cannot be used to cure the omission of primary documents from a record of appeal
Court orders
#- 1.Both applications allowed
- 2.The record of appeal dated 21st October 2008 and lodged on 24th October 2008 struck out
- 3.Costs of both applications to the applicants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- H.C. Election Petition No. 6 of 2008
- Jurisdiction invoked
- Appellate jurisdiction under the Appellate Jurisdiction Act and Court of Appeal Rules, on applications under rules 4, 13, 80 and 85(1)(d) of the Court of Appeal Rules
Relief refused
#Request to invoke sections 3A and 3B of the Appellate Jurisdiction Act to save the defective record of appeal
The omission of primary documents is fatal and cannot be cured by the overriding objective provisions
Costs
Costs of both applications awarded to both the applicants
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.
We are, therefore, of the view that the trial court’s notes including submissions made by counsel are primary documents and their omission from the record renders the appeal incompetent. It cannot be cured by invoking the aforesaid sections 3A and 3B.
Accordingly, and for reasons cited, we find that there is merit in the two applications before us, and we allow both of them, and order that the record of appeal dated 21st October, 2008 and lodged in this Court on 24th October, 2008 be and is hereby struck out with costs to both the applicants.
The omission of any or parts of a document in the primary category renders an appeal incurably defective and therefore incompetent.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Rodgers Abisai T/A Abisai & Company Advocates v Wachira Waruru & another [2014] KECA 378 (KLR)[2014] KECA 378 (KLR)19 Sept 2014distinguished
Cite this brief
#Cite this brief
Caselaw, "ABDI NASSIR NUH v ABDUREHEMAN HASSAN HALKANO & 2 others [2010] KECA 368 (KLR)", Case Analysis (2010). Civil Appeal (Application) 226 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/368/eng@2010-03-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.