Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealOtherCivil Appeal 38 of 2005· [2009] KECA 464 (KLR)

Kenya Ports Authority v Silas Obengele

Court of Appeal of Kenya
18 September 2009
EOE.O. O'Kubasu
1,382 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal refused to add a tax deduction to its judgment because the argument was raised too late.

What this practically means

#

Executive summary

#
This is a ruling by the Court of Appeal (O'Kubasu, JA) on the settlement of the terms of the judgment in Kenya Ports Authority v Silas Obengele, following the Court's judgment of 25 July 2008 which varied the High Court award in an employment dispute, increasing the salary award by a net two per cent and directing the Deputy Registrar to work out the exact pension loss due. When the draft order came for approval, counsel for the appellant raised, for the first time, the argument that the tax element should have been reflected in the judgment, relying on the Income Tax Act and Warren Kenya Ltd v Kabena. Counsel for the respondent objected that tax was never raised during the appeal and that section 37 of the Income Tax Act does not apply to court judgments. O'Kubasu, JA, who had been the trial judge in Warren Kenya Ltd v Kabena, distinguished that case because tax had been argued there, whereas in the present appeal nobody raised the issue of tax. Applying Musiara Ltd v Ntimama and the East African authorities, the Court held that it will refuse invitations to review, vary or rescind its own decisions except to give effect to its intention at the time the decision was made, or where a party was wrongly deprived of the opportunity to present an argument - a consideration absent here. The draft order was approved as drawn, with no room for taking the tax element into account at that stage.

Key legal issues

#
01

Whether tax deductions should be reflected in the judgment and draft order

Holding

The tax element cannot be introduced at the stage of settling the terms of the judgment because it was never raised during the appeal

Reasoning

Counsel for the appellant relied on the Income Tax Act and Warren Kenya Ltd v Kabena, where tax was argued. But in the present appeal nobody raised the issue of tax, so the Court was being asked impermissibly to review or vary its own decision, contrary to settled principle.

p. 2
02

Whether the Court may review or vary its own decision when settling the terms of a judgment

Holding

The Court will refuse invitations to review, vary or rescind its own decisions except to give effect to its intention at the time the decision was made, or where a party was wrongly deprived of the opportunity to present an argument

Reasoning

Relying on Musiara Ltd v Ntimama, Lakhamshi Bros and Somani's, the Court held that allowing post-judgment variation on arguments thought of long after delivery would open the doors to all and sundry to challenge the correctness of its decisions, whether or not the judgment has been perfected.

p. 2

Legal principles established

#
  • The Court of Appeal will refuse invitations to review, vary or rescind its own decisions except to give effect to its intention at the time the decision was made, or where a party was wrongly deprived of the opportunity to argue a point

Court orders

#
  1. 1.The draft order filed in Court on 21st April, 2009 is approved as drawn

Authorities

#

Legislation

  • Income Tax Actsection 37

Cases cited (4)

  • Warren Kenya Ltd. & Another v. Kabena
    [1987] KLR 227

    Relied on by appellant for reflecting tax deductions in judgments; distinguished because tax was argued there but not here

  • Musiara Ltd. v. Ntimama
    [2004] 2 KLR 172

    Court will refuse invitations to review, vary or rescind its own decisions except to give effect to its intention

  • Lakhamshi Bros Ltd v. Rajah & Sons
    [1966] EA 313

    Supporting the rule against review of the Court's own decisions

  • Somani's v. Shirinkhanu (No 2)
    [1971] EA 79

    Exception where a party was wrongly deprived of the opportunity to present an argument

On appeal from
High Court of Kenya at Mombasa
H.C.C.C No. 654 of 1995
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over appeals from the High Court (settlement of terms of its judgment of 25 July 2008)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kenya Ports Authority v Silas Obengele", Case Analysis (2009). Civil Appeal 38 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/464/eng@2009-09-18

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