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|Case Number:||Civil Appeal 21 of 1985|
|Parties:||Kairu v Shaw & 3 others|
|Date Delivered:||09 Dec 1985|
|Court:||Court of Appeal at Nairobi|
|Judge(s):||James Nyarangi Onyiego, Alister Arthur Kneller, Chunilal Bhagwandas Madan|
|Citation:||Kairu v Shaw & 3 others  eKLR|
Kairu v Shaw & 3 others
Court of Appeal, at Nairobi December 9, 1985
Madan Ag CJ, Kneller & Nyarangi JJA
Civil Appeal No 21 of 1985
(Appeal from the High Court at Nairobi, Butler-Sloss J)
Civil Practice & Procedure - trial judge’s notes – application for leave to insert omissions and errors in the record of appeal – where certain facts have been left out from the trial judge’s notes – where judge’s notes are at variance with those of counsel taken during the proceedings.
Appeal – record of appeal – correction of – application for leave to insert certain omissions in the record of appeal – when omissions are vital and likely to affect the courts’ decision on appeal.
The appellant made an application for leave to insert certain omissions into the record of appeal said to have been left out from the trial judge’s notes. It was argued in support of the application that the summons were vital to the court’s decision at appeal.
1. It is the practice, and a good practice it is, to normally accept the trial judge’s notes as correct.
2. In this instance, the application was exceptional in that the omissions were backed by the notes of the evidence taken contemporaneously by the plaintiff’s advocate at the trial.
3. Considering also the possibility of the omissions affecting the result of the appeal, the Court is of the view that this application ought to be allowed.
4. An advisable manner of dealing with the situation would be to give leave to the plaintiff to call additional evidence before the trial court preferably before the judge who tried the suit.
Proceedings remitted to the High Court for the hearing of additional of evidence.
No cases referred to.
No statutes referred.
|Case Outcome:||Proceedings remitted to the High Court for the hearing of additional of evidence|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
IN THE COURT OF APPEAL
(Coram: Madan Ag CJ, Kneller & Nyarangi JJA)
CIVIL APPEAL NO. 21 OF 1985
SHAW & 3 OTHERS……………….....…RESPONDENT
This appeal arises out of a suit filed by the plaintiff in the High Court for specific performance of a contract for the sale of land at the alleged agreed purchase price of Kshs 7m. The record of appeal has been filed as supplied by the High Court.
At the trial in the High Court the plaintiff was represented by Mr Vadgama assisted by Mr Muttu. An application was filed in this court three days ago for leave to insert certain omissions into the record of appeal said to have been left out from the trial judge’s notes of the trial, but which appear in the notes taken by Mr Muttu as the trial proceeded. It is said that the omissions not appearing in the record are vital, and they may well affect the court’s decision on this appeal.
This is a novel application in our experience which when totalled runs into quite a long number of years. It is the practice, and a good practice it is, normally to accept the trial judge’s notes as correct. It would not do to allow the record of trial to be attacked by the defeated party every time a suit is lost. We would not like it to be taken that the court would be willing to embrace applications to that effect freely.
In this instance the situation has a feature which makes it exceptional. It is that the omissions are backed up by Mr Muttu’s notes of the evidence contemporaneously taken by him at the trial. When we add to it the submitted possibility of the omissions affecting the result of the appeal, we are of the view that this application ought to be allowed.
We are also of the view that an advisable manner of dealing with the situation is to give leave to the plaintiff to call additional evidence before the High Court, preferably before the learned judge who tried the suit. That way Mr Muttu and the plaintiff would both be able to testify further. And what is also important is that the defendants will have a full opportunity to battle the situation. We therefore order that the proceedings be remitted to the High Court for the hearing of additional evidence as indicated, and limited to the extent stated in the application. Costs in the appeal. So ordered.
Dated and Delivered at Nairobi this 9th Day of December, 1985
JUDGE OF APPEAL
JUDGE OF APPEAL