Jimba Credit Corporation Limited & another v Mombasa Develoment Limited [2005] KECA 52 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the decree's silence on the counterclaim in the 'Claim for' section rendered the decree and the appeal a nullity
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.
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.
Whether drafting irregularities in the decree (amendments not shown in red; the word 'special' erroneously inserted before 'damages') rendered it a nullity
No. Such slips, though reflecting a lack of care, caused no confusion and were insufficient to invalidate the decree.
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).
Whether the preliminary objection was time-barred and procedurally incompetent
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.
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.
Legal principles established
#- 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
#- 1.The respondent's preliminary objection challenging the Court's jurisdiction is dismissed
- 2.The costs of and occasioned by the hearing of the objection to be in the appeal
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Andrew Gachini Gitonga v Wanjiru Gathu [2017] KEELC 1313 (KLR)[2017] KEELC 1313 (KLR)10 Oct 2017followed
- David Nkonge Imbuuru v Silas Kaburu [2017] KEELC 1561 (KLR)[2017] KEELC 1561 (KLR)20 Sept 2017applied
- Plaintiff v 1st and 2nd Defendants (Injunction Application)[2015] KEHC 7594 (KLR)8 Jul 2015applied
Cite this brief
#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.