Benson Ondimu Masese T/A & another v Kenya Tea Development Agency Ltd [2007] KECA 28 (KLR)
The bottom line
#Kenya's Court of Appeal refused to strike out KTDA's appeal against a defamation award, confirming that appealing an entire judgment is valid even if it includes part of it you won.
What this practically means
#Executive summary
#Key legal issues
#Whether a notice of appeal stating an intention to appeal against the whole of a decision, which includes a ruling in the intending appellant's favour (the refusal of aggravated damages), is incurably defective under rule 74(3) of the Court of Appeal Rules.
Not in this case. Although the Court endorsed the principle that a notice embracing a decision in the intending appellant's own favour is defective, the notice here was not defective because the whole judgment was under challenge: liability was denied and damages cannot be extricated from liability.
The Court accepted that a notice of appeal embracing a decision in the intending appellant's own favour offends rule 74(3) of the Court of Appeal Rules. It nevertheless held the principle inapplicable where the whole judgment is under challenge: KTDA filed a defence denying liability, its counsel's adjournment application was rejected, and it called no evidence. Because any award of damages rests on liability, the refusal of aggravated damages could not be severed from the judgment as a whole, so the notice attacking the entire decision was not defective.
Whether the decision in Richard Kanyago & 2 Others v. David Mukii Mereka compelled the striking out of the notice of appeal.
No. Kanyago was distinguished: its abuse-of-process rationale applies only where the intending appellant challenges a quantum it consciously negotiated or agreed, which was not the case here.
In Kanyago the intending appellants had consciously negotiated the quantum of special damages they later sought to challenge; that conduct was an abuse of the court process and violated statutory provisions expressly prohibiting it, including section 67(2) of the Civil Procedure Act. Here the respondent agreed nothing: it filed a defence denying liability and, after its adjournment application was rejected, called no evidence. Kanyago was therefore distinguishable and did not compel striking out the notice of appeal.
Whether the application was properly brought under rule 80 (which stipulates two grounds only: that no appeal lies, and that some essential step in the proceedings has not been taken or has not been taken within the prescribed time), and whether there was variance between the notice of motion and the affidavit in support.
The Court considered but declined to determine these points, finding them unnecessary in view of its conclusion that the notice of appeal was not defective.
Mr. Yego for the respondent submitted that rule 80 stipulates only two grounds - that no appeal lies, and that some essential step in the proceedings has not been taken or has not been taken within the prescribed time - neither of which the motion invoked, and that there was variance between the motion and the affidavit in support. The Court said it had considered the issues but held it unnecessary to deal with them in view of its conclusion on the notice of appeal.
Legal principles established
#- A notice of appeal that expresses an intention to appeal against even a decision in the intending appellant's own favour is defective, offending rule 74(3) of the Court of Appeal Rules.
- Where liability was denied and nothing was agreed, a notice of appeal against the whole of a judgment is not defective merely because the judgment also declined a head of damages (such as aggravated damages) that would have favoured the intending appellant, since damages cannot be severed from liability.
- Seeking to challenge on appeal a quantum of damages one has consciously negotiated or agreed upon is an abuse of the court process and violates statutory provisions that expressly prohibit it.
Court orders
#- 1.The notice of motion dated 19th May 2006 is dismissed.
- 2.Civil Application No. NAI.162 of 2006 is dismissed for the same reasons, counsel having agreed that the decision in this matter should apply to that application, the issues being the same.
- On appeal from
- High Court of Kenya at Kisumu
- H.C.C.C. No. 75 of 2004
- Jurisdiction invoked
- Rule 80 of the Court of Appeal Rules and section 3 of the Appellate Jurisdictions Act, Cap 9 Laws of Kenya (application to strike out a notice of appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benson Ondimu Masese T/A & another v Kenya Tea Development Agency Ltd [2007] KECA 28 (KLR)", Case Analysis (2007). Civil Application No. 161 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/28/eng@2007-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.