:EPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAIROBI CIVIL APPLICATION NO. E085_OF 2022 BETWEEN MEKADISHEM MINISTRIES. DR. GODWIN OGBEWEKON, CHAIRMAN OF THE 1ST PLAINTIFF JEREMIAH OGOLLA, SECRETARY OF TE 15? PLAINTIFF DR. THERESA OGBEWEKON, THE TRESURER OF THE MEKADISHEM MINISTRY +28 APPLICANT —lo - versus - FATUMA TOMN' JOHN MWORIA ‘TWAMWORIA & ASSOCIATES ADVOCATES ..28? RESPONDENT (An application for leave to file a supplementary record of appeal pursuant to Rule 42 & 88 of the Court of Appeal Rules, 2010) in Civil Appeal No.E5SS of 2021) St RESPONDENT. APPELLANTS /APPLICANTS’ SUBMISSIONS Your Lordship, 1, The applicant brought this application seeking leave to file a Supplementary Record of Appeal out of time and annexed a Supplementary Record of Appeal, urging the this Honourable Court to deem the same as duly filed within the extended time. =20 The application is based on the grounds that certain crucial pages of the proceedings of the superior court were inadvertently left out of the Record of Appeal rending the appeal herein incomplete. 4. ‘That the filing of the Supplementary Record of Appeal will enable the Court to determine ‘That the Supplementary Record of Appeal is intended to correct the said inadvertence the dispute correctly, 5. That itis in the interest of justice and faimess that the orders sought be granted.Whether the applicant should be granted leave to file a Supplementary Record of App 6. Rule 88 of the Court's Rules provides that where a document referred to in rule 87(1) and (2) is omitted from the record of appeal the appellant may within fifteen days of lodging the record of appeal, without leave, include the document in a supplementary record of. appeal filed under rule 92(3) and thereafter with leave of the deputy registrar on application. 7. The reason why the applicant intends to file a Supplementary Record of Appeal toallow the Court to determine the dispute correctly. In the case of Surestep Systems and Solutions Limited v Ataka, Kimori & Okoth Advocates [2021] eKLR, the applicant was granted leave to file a Supplementary Record of Appeal for the reason that some pages of the Record of — |© Appeal already filed were missing, Similarly in this application, the applicant is seeking to include missing pages so as to make the Record of Appeal complete. 8. A Record of Appeal should be complete and accurate, The applicants’ current application is meant to make the Record of Appeal already filed at the case of Kenya Industrial Estates Ltd v Samuel Sang & another [2007]eKLR which quoted with approval the decision in Commercial Bank of Africa Ltd v Ndirangu [2000] TEA 29 (CAK) where the court stated as follows: urate. We rely on the decision in “Itis, however, trite law that for an appellate court to interfere with the exercise of judicial discretion of a trial court all the material that was before that court, except such material as is excluded by a direction or an order given under Rule — 2c. 85(3) of the Rules, should have first been looked at and the court after doing so comes 10 the conclusion that the Judge erred in principle or that he was plainly wrong.” The court went further to state as follows: “Rule 85(1) above, enumerates documents to be included in a record of a first appeal to this Court. The documents are of two categories, primary and secondary. The omission of any or parts of a document in the primary categoryrenders an appeal incurably defective and therefore incompetent...The trial court's notes whether or not either party considers them relevant and essential to the determination of the appeat, provided they were made before the decision appealed from, are primary documents and unless specifically excluded by a judge's direction given under Rule 85(3) aforesaid, their omission from the record, as it is the case here, render the appeal incompetent. 9, Similarly in this case, the applicant is appealing the de: ion of the superior court. This honourable court is required to look at all the material that was before the superior court including typed proceedings. The applicant out of inadvertence filed a Record of Appeal that had missing pages. The current application seeks to provide the said pages to make the Record of Appeal complete so that the appeal is not rendered incurably defective and or incompetent 10, In the circumstances your lordship, we urge you to allow the Applicant's application dated 16" March 2022 as prayed. The respondents will not suffer any prejudice if the same is, allowed, 11. We are much obliged. a DATED at NAIROBI this 38 ay of eet 2022 $.0.07 SSOCIATES Aby RR THE APPLICANTS S. O. Owino & Associates, Advocates, B : 9 . North Wing, Street, P. O: Box 47379-00100, NAIROBI. Cell: 0728880708 Email: soowino@gmail.comTo be served upon: Wokabi Mathenge & Co. Advocates Shankardass House (Next to Kenya cinema) Fourth Floor, Suite 406, P.O. Box 16686-00100. NAIROBI. ‘Tel: 020-2211419 or 0115-994782 Email: chamberswokabi@gmail.com‘Surestep Systems ana Solutions Limited v Ataka, Klmori & Ukoth Advocates (20Z1] KL KENYA LAW ‘heer np iesten i acne ATNAIROBI CIVIL APPLICATION NO, NAL 37 OF 2020 BETWEEN SURESTEP SYSTEMS AND SOLUTIONS LIMITED... APPLICANT AND ATAKA, KIMORI & OKOTH ADVOCATES 0-RESPONDENT mae (An application for leave to file a supplementary record of appeal pursuant to Rule 42 & 88 of the Court of Appeal Rules, 2010) im JR Mise. Application No. 22 of 2018 RULING OF THE COURT 1. In an application dated 17th December 2020 under Rule 42 and 88 of the Court of Appeal Rules, the applicant seeks orders for leave to file a Supplementary Record of Appeal out of time and that the annexed Supplementary Record is deemed duly filed and served. 2. [tis contended that the applicant recently discovered that certain critical pages of the impugned ruling were inadvertently eft out of the record of appeal rendering the same incomplete and that it sin the interest of justice and faimess that the orders sought be allowed. The supplementary record of appeal is therefore intended to correct the said inadvertence. 3. Rule 88 of the Court's Rules provides that where a document referred to in rule 87(1) and (2) is omitted from the record of ~ © ‘appeal the appellant may within fifteen days of lodging the record of appeal, without leave, include the document in a supplementary record of appeal filed under rule 92(3) and thereafter with leave of the deputy registrar on application, 4. In my view the applicant has satisfactorily explained the reasons for secking to file a supplementary Record of Appeal which is to allow the Court to determine the dispute correctly. Consequently, the application is allowed and a direct that the Supplementary Record of Appeal be filed and served within the next 14 days from the date hereof, No orders as to costs Dated and delivered at Nairobi this 19th day of February, 2021 tiv konyataw.org- Page 172Surestep oysters ana Solutions Limited v Ataka, Kimon & Ukoth Advocates [2021] eKLK M. WARSAME JUDGE OF APPEAL, 1 certify that this isa true copy of the original, Signed DEPUTY REGISTRAR a a occa ote rence dee ree es ‘Aion: ShareAlika 4.0 Intestinal, the txts ofthe lucia oinons contained in itarein he gue cama ar are fee tom any Eapygn estos, Read our Privacy Pala Disclamer iip:tivwn kenyataw.org- Page 2/2Kenya Industrial estates Lta v Samuel Sang & anoter [ZUU/jeKLK. HKENYA LAW REPUBLIC OF KENYA PE YA ALNAIROBL Civil Appeal (Appli) 94 of 2004 KENYA INDUSTRIAL ESTATES LTD......... APPELLANT/APPLICANT AND SAMUEL SANG ... .ss1: 157 RESPONDENT HEMA INVESTMENTS LTD 28° RESPONDENT ie (An appeal from a judgment and decree of the High Court of Kenya irobi (Visram, J.) dated 21" January, 2004 in H.C.C.C. NO. 994 OF 1998) RULING OF THE COURT There is an application filed by M/S. Kenya Industrial Estates (KIE), who are the appellants in the main appeal, on 7" May, 2007, (dated 23" April, 2007) seeking one order: “That this Honourable Court of Appeal be pleased to grant the applicant leave to file a further supplementary record of Appeal!” — 2% Rule 85 (2A) as well as rule 89 of this Court's rules (‘the rules”) are relied on for that application. For support of the application, Mr. John Fredrick Omwoyo, the Chief Legal Officer of KIE swore an affidavit on 23" April, 2007 wherein he deponed as followed: - “5. THAT | am aware that the hearing aforesaid failed to take off after the advocate for the Respondent insisted that his application for and on behalff of the Respondent dated 31 March, 2006, be itp: kenyalew.org - Page 1/0Kenya Industrial estates Lia v Samuel Sang & anotner [ZUU/JenUK 6. _ THAT the aforesaid application, a copy thereof annexed hereto and marked “JF01" principally sought the striking out of the record of appeal lodged on 17" May, 2004 and the Supplementary Record of Appeal lodged on 2” May, 2006 for reasons inter alia that they had respectively failed to include some primary and secondary documents stated on the face of the said application. 7. THAT lam informed by ©.N. Wanjao Advocate for the Applicant that the failure to include some primary and secondary documents particularly the Plaint filed in HCCC NO, 994 of 1998 and dated 28” April, 1998, an Order issued by Honourable Lady Justice Aluoch dated 10” November, 1998, an Order by Honourable Justice Mulwa dated 4 December, 1998 and a Chamber Summons Application dated 11” October, 2001 and filed on 23% October, 2001 together with the supporting affidavit was by an oversight on the part of the applicant's advocates on record. —@ 8. THAT the aforesaid documents are annextures to the affidavit in support of the Application referred to in paragraph 6 above. 9. THAT the Applicant now craves for the leave of the court to file a further Supplementary Record of Appeal to place before the court the documents not included in the earlier lodged records with a view to paving the way for the hearing and determination of the appeal on the merits. 10. THAT | verily believe that no prejudice will be occasioned to the Respondents that cannot be remedied by an award of costs for the following reasons: - a) THAT the Respondents did not proceed under rule 89(1) of the Court of Appeal Rules to file a Supplementary Record of Appeal to bring the aforesaid documents on record or at least raise the issue with the Applicant's advocates with a view to having the said documents included in the Supplementary 2.0 Record of Appeal lodged on 2" May, 2006. b) THAT the Respondents through their advocates had all along prior to the filing of their application referred to in paragraph 6 above intimated to the Court their readiness to proceed with the hearing of the appeal without taking issue with the non-inclusion of any documents in the Record of Appeal. c) THAT the Respondents have abandoned their Application referred to in paragraph 6 above as evidenced by the letter by M/S. Omotii & Co. Advocates dated 22”! March, 2007 addressed to the Deputy Registrar of this Honourable Court. Annexed hereto and marked : “JFO 2” is a copy hereof.” It is not disputed, as stated by Mr. Omwoyo in that affidavit, that the application filed by the two respondents seeking to strike out the main appeal was withdrawn. It was obviously filed way out of line — 30 with the provisions of rule 80 of the rules of this Court. It is also common ground, as stated in the affidavit, that although leave was given to the applicant to file a supplementary record of appeal and the record was indeed filed, there were other documents which are necessary for determination of the appeal which were left out and there was no order sought or issued under rule 85 (3) for exclusion of any document. What is in issue is whether the documents intended to be included in the intended ‘supplementary record are primary or secondary documents. There would be little difficulty in acceding to the application if such documents were secondary, particularly considering that the respondents could have, but did not, take advantage of the clear provisions of rule 89 (i) of the rules, But we are told by Mr. E.M. Omotii, learned counsel for the respondents, that some of the documents intended to be introduced through a supplementary record are of a primary nature which cannot legally be so —~fo introduced. Itis necessary therefore to consider the nature of those documents nt/ww.kenyalaw.org- Page 26Kenya Industral Estates Lta v Samuel Sang & anotner (ZU /JeKLK. The advocates on record for the applicant are led in this matter by retired Judge, Andrew Hayanga who is now back in private practice. Mr. Hayanga referred us to the affidavit in support of the application for the documents sought to be introduced and enumerated them thus: - a) _ The original plaint filed in HCCC 994/98 which was amended twice. b) Anorder made by Aluoch J on 10" November, 1998. ¢) Anorder made by Mulwa J on 4” December, 1998. d) A request for judgment dated 14" December, 1998 and filed on 15” December, 1998. e) | Achamber summons dated 23” October, 2001 together with the supporting affidavit inclusive of annextures thereto. Alll those documents according to Mr. Hayanga were not documents of a primary nature and may be —\O included in a supplementary record. He pleaded that they were not omitted deliberately but due to human error in preparation of the bulky record of appeal and therefore the fault was excusable. For his part, Mr. Omoti, apart from urging us to reject the application on account of the delay of three years taken before this application was filed, submitted that it was not possible to grant it because the original plaint which is said to have been amended twice subsequent to its filing was a primary document. So were some exhibits produced in the course of the hearing of the suit which are identified in the proceedings before the superior court but are nowhere in the record. Responding to those submissions Mr. Hayanga contended that the original plaint was not a useful document as it was replicated in the two subsequent amendments. Only the amended portions were underlined. So were the exhibits referred to. They are capable of introduction through @ supplementary — 20 record. According to Mr. Hayanga and his team, as far as they could establish, there was no authority stating otherwise and therefore this Court had unlimited discretion to exercise in the matter. We have considered the application, the affidavits on record and the rival submissions of both counsel who cited no authorities to resolve the central issue as stated above, whether the documents intended to be introduced were primary or secondary documents. Fortunately for us, we have resolved that issue before and we find no difficulty in resolving it now. Rules 85 and 89 of the rules of this Court are relied on in this application. Rule 85 relates to what a record of appeal shall contain, whether such appeal is from the superior court in its original jurisdiction or in its appellate jurisdiction. It is couched in mandatory terms and had for many years been construed strictly by this Court to the chagrin of many a party who had not compiled a proper record of appeal. But — 0 by Legal Notice No. 76/90, sub-rule 2A, which is now relied on, was introduced. It states: “Where a document referred to in paragraph (a), (b), (e), (i) or (k) of sub-rule (1) is omitted from the record the appellant may, with the leave of the Court, include the document in a supplementary record of appeal filed under rule 89(3).” Rule 89 relates to the preparation and service of supplementary record and in sub-rule 3, it provides: “An appellant may at any time lodge in the appropriate registry four copies of a supplementary record of appeal and shall as soon as practicable thereafter serve copies of it on ttp:tvmw.konyalaworg - Page 18Kenya incustrial Estates Lia v Samuel Sang & anotner |ZUU/jeKLK. every respondent who has complied with the requirements of rule 78. As is evident from sub-rule 2A, only the following documents may be introduced in a supplementary record: - “(a) an index of all the documents in the record with the numbers of the pages at which they appear; a statement showing the address for service of the appellant and the address for furnished by the respondent and as regards any respondent who has not furnished an address for service as required by rule 78, his last known address and proof of service on him of the notice of appeal; {e) the transcript of any shorthand notes taken at the trial; pee (i) the order, if any, giving leave to appeal; (k)__ such other documents, if any, as may be necessary for the proper determination of the appeal, including any interlocutory proceedings which may be directly relevant:" The rest of the documents listed under rule 85 (1) and (2) are primary documents. There is no definition in the rules themselves of what document is primary or secondary. But this Court has construed the provision in several decisions including Commercial Bank of Africa Ltd v ‘Ndirangu [2000] | EA 29 (CAK) and Uhuru Highwa\ Bank of Kenya [2002] EA 314 (CAK). In the latter case, Omolo J.A eee “This Court has repeatedly ruled that primary documents cannot be amended and primary documents, as far as | understand the position, are such documents which cannot be brought —20 into the record of appeal by way of a supplementary record. Rule 85(1){a) to (k) lists all the documents which are to be included in a record of appeal. Rule 85(2A) then lists those documents which, if left out of the record of appeal, may be brought in by way of a supplementary record. The documents which may not be brought in by way of a supplementary record and are, therefore, primary documents are: (i) pleadings (ii) the trial Judge's notes of the hearing )) the affidavits read and all documents put in evidence at the hearing (exhibits), or, if such documents are not in the English language, certified translations thereof; (iv) the judgment or order 50 (v) acertified copy of the decree or order, and (vi) the notice of appeal These documents are ‘primary’ in the sense that once they are omitted from the record of appeal, they cannot be brought into the record by the filing of a supplementary record.” - tp: Kenyataw.org - Page 4/6Kenya Industrial Estates Lta v Samuel Sang & anotner [2UU/JeKLH. ‘emphasis is added, In the Commercial Bank of Africa Case (Supra) this Court explained the basis for the emphasis placed by the rules on a complete and accurate record of appeal. It stated: “It is, however, trite law that for an appellate court to interfere with the exercise of judicial discretion of a trial court all the material that was before that court, except such material as is excluded by a direction or an order given under Rule 85(3) of the Rules, should have first been looked at and the court after doing so comes to the conclusion that the Judge erred in principle or that he was plainly wrong.” Itwent further and drew a distinction between primary and secondary documents: “Rule 85(1) above, enumerates documents to be included in a record of a first appeal to this. Court. The documents are of two categories, primary and secondary. The omission of any or Parts of a document in the primary category renders an appeal incurably defective and therefore incompetent. We have already held that documents which were filed in court after the ruling appealed against are superfluous. Among those documents are the amended defence and counterclaim, the reply thereto and defence to the counterclaim. The trial court's notes whether or not either party considers them relevant and essential to the determination of the appeal, provided they were made before the decision appealed from, are primary documents and unless specifically excluded by a judge’s direction given under Rule 85(3) aforesaid, their omission from the record, as it is the case here, render the appeal incompetent. Likewise all interlocutory applications and orders made pursuant thereto, and all exhibits, must be included in the record_ of appeal unless excluded as aforesaid. A party in a suit has no discretion to exclude from the record of appeal any document, whether primary or otherwise in view of that provision. Had the rules-making authority thought otherwise, there would have been no necessity of specifically vesting the power on the Superior court to give a direction in that regard.” -Emphasis is added. The provisions and authorities cited above make it clear what is or is not primary or secondary in a record of appeal, But the issue still remains: is an original plaint which has ‘subsequently been amended, and the amended plaint is included in the record of appeal, a primary document, the omission of which would render the record incompetent" The answer was provided by this Court in Delphis Bank Ltd v Ganeland Ltd & 2 others Civil Appl. NAI. 33/99 (ur) which was followed in Samuel Gitau vs. Elijah Kipng’eno arap Bii & Another Civil Appeal (Appl.) No. 255/04 (ur) .The Court stated: - “The issue which we are called upon to decide is whether the original plaint and the original defence should be excluded from a record of appeal when the two documents are amended. We are certainly not trying the suit. Rule 85 of the Rules specifies the contents of a record of appeal. Sub-rule (1) (c) clearly shows that the two documents must be incorporated in the record of appeal for the purpose of an appeal from a superior court. We think that this is a mandatory rule and failure to comply with it would render any appeal incurably defective and the same is liable to be struck out as incompetent. In Dhanji Ramji vs. Malde Timber [1970] E.A 427 Spry, V.P. said: - to aos —3o “First, as regards amended pleadings, it is clear that the court looks only to the pleading as amended in deciding the issues, Again, where an original pleading contained an adi itp:/iem.kenyalaw.og - Page 5/6Kenya Incustnal Estates Ltd v Samuel Sang & anotner |ZUU/JeKLK. which was deleted in the amended pleading, that admission can no longer be relied on. But that oe: pl the itis le. th fect (hat was originally written remains legible. (underlying ours) We would agree”. So there it is. The original plaint ought to have been included in the record as a primary document. It was not. So were the exhibits which were evidently omitted from the record. In the result we find and hold that the application is incapable of grant as sought and we must dismiss it. It is so ordered. Costs of the application shall be borne by the applicant. Dated and delivered at Nairobi this 8" day of June, 2007. S.E.0. BOSIRE JUDGE OF APPEAL P.N. WAKI JUDGE OF APPEAL W.S. DEVERELL JUDGE OF APPEAL | certify that this is, a true copy of the original. DEPUTY REGISTRAR ati Gat ila tras pensi) sec samc pees ee so ee ‘Atubution-SharsAlke 4.0 Intalio, the texts ef te judea pions contained in tare in the puble domain and are tes fom any copyrght restictons Read cut Pray Pali | Disclaimer hitp:/vw.konyalaworg - Page 6/6 0