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Court of AppealDismissedCivil Application No. 161 of 2006· [2007] KECA 288 (KLR)

Benson Ondimu Masese T/A & another v Kenya Tea Development Agency Ltd [2007] KECA 288 (KLR)

Court of Appeal of Kenya
20 June 2007
SBS.E.O. BosirePWP.N. WakiJOJ.W. Onyango Otieno
840 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that appealing an entire judgment is proper when liability itself is being challenged, so KTDA's appeal survived a striking-out attempt.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal at Kisumu on a striking-out application. Benson Ondimu Masese, an advocate who had obtained a defamation judgment with general and exemplary damages (aggravated damages having been refused) against Kenya Tea Development Agency Ltd, applied under rule 80 of the Court of Appeal Rules and section 3 of the Appellate Jurisdictions Act to strike out the KTDA's Notice of Appeal as incurably defective. His case was that, because the trial court (Tanui J) had refused aggravated damages, that refusal was a decision in KTDA's favour which could not properly be appealed against, so the notice offending rule 74(3) by appealing against the whole judgment was defective. Counsel relied on Richard Kanyago v David Mukii Mereka, where a notice of appeal challenging consent-agreed special damages was held incurably defective. The court accepted the general proposition that appealing against a decision in one's own favour renders a notice defective, but distinguished Kanyago: there the appellants had consciously agreed the quantum, an abuse of process prohibited by statute, whereas KTDA had denied liability, was refused an adjournment, and called no evidence. Damages, the court held, cannot be extricated from liability, so the whole decision was under challenge and the notice was not defective. The court also declined to determine arguments about the rule 80 grounds and variance between motion and affidavit as unnecessary. The motion dated 19th May 2006 was dismissed, and the companion Civil Application No. NAI.162 of 2006 was dismissed on the same basis by consent of counsel. No separate costs order was recorded.

Key legal issues

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01

Whether a notice of appeal against the whole judgment is incurably defective where part of the judgment (refusal of aggravated damages) was favourable to the appellant

Holding

No - where liability is denied and the whole decision is under challenge, an appeal against the entire judgment is proper because damages and liability are inseparable

Reasoning

The applicant argued the refusal of aggravated damages was a decision in favour of the respondent, making the appeal against the whole judgment defective under rule 74(3). The court distinguished Richard Kanyago, where appellants sought to challenge special damages they had agreed by consent, an abuse of process and contrary to statute. Here the respondent denied liability, lost an adjournment application, and called no evidence, so the entire decision was genuinely under challenge and damages could not be extricated from liability.

p. 2
02

Compliance with rule 80 grounds and variance between motion and supporting affidavit

Holding

The court declined to decide these issues as unnecessary given its finding that the notice of appeal was not defective

Reasoning

The respondent argued the application was not founded on either of the two grounds in rule 80 (no appeal lies, or essential step not taken) and that there was variance between the motion and the affidavit. The court considered the issues but found it unnecessary to determine them because its decision on the merits of the defectiveness question disposed of the application.

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Legal principles established

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  • A notice of appeal is defective where an intending appellant expresses a desire to appeal against a decision that was in his own favour; but where liability is under challenge, the whole judgment may properly be appealed against because damages cannot be severed from liability.

Court orders

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  1. 1.The notice of motion dated 19th May 2006 is dismissed
  2. 2.Civil Application No. NAI.162 of 2006 is dismissed for the same reasons, as agreed by counsel
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

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Benson Ondimu Masese T/A & another v Kenya Tea Development Agency Ltd [2007] KECA 288 (KLR)", Case Analysis (2007). Civil Application No. 161 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/288/eng@2007-06-20

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