A.H. LALJI vs B.H. LALJI,D. H. NURANI,SAMVIR MANAGEMENT SERVICES LIMITED & ATTA (KENYA) LIMITED [2000] KECA 231 (KLR) | Defective Record Of Appeal | Esheria

A.H. LALJI vs B.H. LALJI,D. H. NURANI,SAMVIR MANAGEMENT SERVICES LIMITED & ATTA (KENYA) LIMITED [2000] KECA 231 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE COURT OF APPEAL

AT NAIROBI

civ app 52 of 99

A.H. LALJI ........................................APPELLANT

AND

B.H. LALJI .................................... 1ST RESPONDENT

D.H. NURANI ................................... 2ND RESPONDENT

SAMVIR MANAGEMENT SERVICES LIMITED ............. 3RD RESPONDENT

ATTA (KENYA) LIMITED ........................... 4TH RESPONDENT

RULING OF OWUOR, J.A

I have had the advantage of reading and considering in draft the rulings of GICHERU and SHAH, JJ.A. I have no doubt in my mind and based on the numerous recent authorities of this Court; see Trimborn Agricultural Engineering Limited vs David Njoroge Kabaiko and Kenya Shield Security Limited Civil Appeal (Application) No. 274 of 1998, and Pepco Construction Company Limited vs Carter & Sons Limited Civil Appeal (Application) No. 80 of 1999, that a defective primary document, which the order filed herein is, cannot be amended or brought on record by way of a supplementary affidavit. In that regard it renders the whole appeal incompetent.

The order complained of contains an order that is in respect of another ruling that is not subject matter of the present appeal. Furthermore it contains an amendment whose origin is not ascertainable. Jowits Dictionary of English Law defines an amendment as:- "the correction of some error or omission or the curing of some defect in judicial proceedings".

In a case like this one where it is in dispute as to who effected the amendment and at what stage of the proceedings, there has to be some evidence as to the authenticity of the amendment. I would find merit in Mr. Oduol's objection to the order in the record of appeal and hold that the same is incurably defective, thereby rendering the appeal incompetent.

Dated and delivered at Nairobi this 7th day of April, 2000.

E. OWUOR

JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR