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Court of AppealDismissedCivil Appeal No. 48 of 2016· [2017] KECA 663 (KLR)

Hassan Babakar Osman v Arafco Agricultural Intergration Company Limited [2017] KECA 663 (KLR)

Court of Appeal of Kenya
10 March 2017
ASAsike-MakhandiaWilliam OukoW. OukoKMK. M'inoti
1,862 words in judgment
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The bottom line

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The Court of Appeal threw out an appeal over a Sh billions Galana Ranch dispute simply because the appellant filed an incomplete record of documents.

What this practically means

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Executive summary

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The respondent, Arafcо Agricultural Intergration Company Limited, sued the appellant in the Environment and Land Court at Malindi seeking a permanent injunction, eviction and ancillary orders over Galana Ranch/block 1/1, contending the Sultan had defaulted on a memorandum of understanding under which he would inject USD216,000,000 and hold 900 of 1,000 shares. By a ruling of 13th May 2016, Angote, J. granted the respondent temporary injunctive relief, finding a prima facie case, and dismissed the appellant's two competing applications. The appellant appealed, contending inter alia that the orders amounted to an unpleaded mandatory injunction and eviction at an interlocutory stage, that no prima facie case existed, that the CR 12 forms were forgeries, and that the judge lacked jurisdiction. The Court of Appeal (Makhandia, Ouko and M'inoti, JJ.A) framed the sole issues as whether a prima facie case justified the temporary injunction and whether the judge's discretion was properly exercised. However, the record of appeal omitted key documents - the MOU, lease, CR 12 forms, power of attorney and correspondence - and although leave to file a supplementary record was granted, none was filed. The Court held it could not evaluate the prima facie case without a complete record and, invoking Rule 87 of the Court of Appeal Rules, declared the appeal incompetent and dismissed it with costs to the respondent. The trial court's ruling was thereby effectively affirmed.

Key legal issues

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01

Competence of an appeal founded on an incomplete record

Holding

An appeal whose record omits key documents necessary to evaluate the impugned decision is incompetent and must be dismissed.

Reasoning

The record of appeal contained only the document examiner's report, omitting the MOU, lease, CR 12 forms, power of attorney and correspondence. The appellant had been granted leave to file a supplementary record but never did. Without those documents the Court could not interrogate whether a prima facie case existed - the mainstay of the appeal - so under Rule 87 of the Court's Rules the appeal failed for want of necessary documents.

p. 3
02

Requisites for grant of interlocutory injunctions

Holding

The Court reaffirmed the classic Giella v Cassman Brown test for interlocutory injunctions as the governing standard.

Reasoning

The Court identified the sole issues as whether a prima facie case was established and whether the trial judge properly exercised his discretion. It restated the three-pronged test from Giella v Cassman Brown - prima facie case with probability of success, irreparable injury not compensable in damages, and balance of convenience where in doubt - but could not evaluate its application because the primary documents were absent from the record.

p. 3

Legal principles established

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  • An appeal must be supported by a complete record containing the documents necessary to determine the issues; an appeal lacking necessary documents is incompetent.
  • A party who asserts that the trial court erred must place a complete record before the appellate court to establish that assertion.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 87
  • Indian Transfer of Property ActSection 52

Cases cited (1)

  • Giella v Cassman Brown & Company Limited
    [1973] E.A. 358
On appeal from
Environment and Land Court at Malindi
Environment and Land Court Case No. 218 of 2015
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal's statutory appellate powers (Court of Appeal Rules, Rule 87 invoked on completeness of record)

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, "Hassan Babakar Osman v Arafco Agricultural Intergration Company Limited [2017] KECA 663 (KLR)", Case Analysis (2017). Civil Appeal No. 48 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/663/eng@2017-03-10

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