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Court of AppealDismissedCivil Appeal 107 of 2004· [2005] KECA 52 (KLR)

Jimba Credit Corporation Limited & another v Mombasa Develoment Limited [2005] KECA 52 (KLR)

Court of Appeal
29 April 2005
1,526 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal allowed an appeal to continue because the challenge to it came too late and the alleged paperwork errors were minor.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Tunoi, Githinji, JJ.A. and Deverell, AG. J.A.) on a preliminary objection raised by the respondent, Mombasa Development Limited, to the competence of the appellants' appeal against the judgment and decree of the High Court at Mombasa (Sergon, J.) dated 19 December 2003 in H.C.C. No. 658 of 1993. The respondent contended that the Court lacked jurisdiction because the extracted decree did not comply with Section 25 of the Civil Procedure Act as read with Order XX rule 6: it omitted the counterclaim from the claim particulars, failed to show amendments in red, and erroneously inserted the word 'special' before 'damages'. Relying on Samaki Industries, counsel argued the decree was a nullity. The Court disagreed: unlike the decree in Samaki, this decree expressly dismissed the counterclaim in the decretal paragraph, and the drafting slips, though deplorable, caused no confusion and did not render the decree incurably defective. Independently, the objection was procedurally barred: it was brought well outside the thirty-day window in the proviso to rule 80 of the Court of Appeal Rules, and although counsel invoked rule 101(b), leave to raise the objection at the hearing was neither sought nor granted. The preliminary objection was dismissed, with the costs of and occasioned by the hearing of the objection ordered to be in the appeal, given the laxity in the drawing up of the decree that provoked the objection.

Key legal issues

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01

Whether the decree's silence on the counterclaim in the 'Claim for' section rendered the decree and the appeal a nullity

Holding

No. The counterclaim was dismissed in the decretal paragraph, so the decree was not completely silent; unlike the decree in Samaki Industries, this decree was not incurably defective.

Reasoning

The court distinguished the unreported Samaki Industries decision, where the decree was wholly silent as to the counterclaim and was struck out along with the appeal. Here paragraph 3 of the decree expressly dismissed the defendants' counterclaim with costs, making clear a counterclaim existed and was determined. The omission from the heading did not amount to the incurable defect in Samaki, so the jurisdictional foundation of the objection failed on this ground.

p. 3
02

Whether drafting irregularities in the decree (amendments not shown in red; the word 'special' erroneously inserted before 'damages') rendered it a nullity

Holding

No. Such slips, though reflecting a lack of care, caused no confusion and were insufficient to invalidate the decree.

Reasoning

The court acknowledged the lack of care in drafting the decree but held that an obvious typographical error which did not cause confusion was not fatal. Special damages had otherwise been correctly dealt with, so the erroneous insertion of the word 'special' before 'damages' was a mere slip, not a failure to agree with the judgment as required by Order XX rule 6(1).

p. 3
03

Whether the preliminary objection was time-barred and procedurally incompetent

Holding

Yes. The objection was outside the thirty-day window under the proviso to rule 80, and leave under rule 101(b) was neither sought nor granted.

Reasoning

It was undisputed that the application to strike out was brought well beyond thirty days from service of the record of appeal. Although counsel invoked rule 101(b), which requires leave before raising at the hearing an objection to the competence of the appeal that could have been raised under rule 80, no leave was sought as indicated in the notice letter. The court heard the objection on its merits but held the procedural defaults independently justified dismissal, and would in any event have refused leave had it been applied for.

p. 3

Legal principles established

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  • A respondent who wishes to raise an objection to the competence of an appeal which could have been raised by application under rule 80 must first obtain leave of the Court under rule 101(b); without leave such an objection cannot be entertained
  • An application to strike out an appeal must be brought within thirty days of service of the record of appeal on the respondent; an objection outside that period is time-barred
  • A decree that refers to the counterclaim in the decretal body, dismissing it, is not a nullity even where the counterclaim is omitted from the particulars of claim in the decree heading; minor drafting slips that cause no confusion do not render a decree incurably defective
  • Where a court hearing an objection to jurisdiction under rule 101(b) finds a jurisdictional defect, it may strike out an appeal on its own motion notwithstanding the absence of a formal application

Court orders

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  1. 1.The respondent's preliminary objection challenging the Court's jurisdiction is dismissed
  2. 2.The costs of and occasioned by the hearing of the objection to be in the appeal

Authorities

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Legislation

  • Appellate Jurisdiction ActSection 3
  • Civil Procedure ActSection 25
  • Court of Appeal RulesRule 80 (including proviso)
  • Court of Appeal RulesRule 101(b)
  • Civil Procedure RulesOrder XX rule 6(1)

Cases cited (1)

  • Samaki Industries (Nairobi) Limited v. Samaki Industries (Kenya) Ltd.
    Civil Appeal No. 108 of 1996 (Unreported)
On appeal from
High Court of Kenya at Mombasa
Mombasa H.C.C. No. 658 of 1993
Jurisdiction invoked
Appellate jurisdiction under the Appellate Jurisdiction Act and the Court of Appeal Rules (appeal from the High Court); objection raised under rule 101(b) of the Court of Appeal Rules as read with Section 3 of the Appellate Jurisdiction Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Jimba Credit Corporation Limited & another v Mombasa Develoment Limited [2005] KECA 52 (KLR)", Case Analysis (2005). Civil Appeal 107 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/52/eng@2005-04-29

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