Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal (Application) No. 191 of 2005· [2010] KECA 308 (KLR)

Mukawa Hotels Holdings Limited v Beat Koch

Court of Appeal
30 April 2010
827 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal refused to strike out an appeal where the only flaw was a wrong judgment date that the High Court had already corrected.

What this practically means

#

Executive summary

#
This is a ruling of the Court of Appeal at Nairobi (O'Kubasu, Aganyanya and Visram, JJA) dismissing an application by Beat Koch, the respondent in the intended appeal, to strike out the notice of appeal dated 12th March, 2004 and Civil Appeal No. 191 of 2005 filed by Mukawa Hotels Holdings Limited against the High Court judgment in H.C.C.C. No. 888 of 2001 (Ibrahim, J.). The applicant complained that the notice of appeal and the record of appeal were incurably defective because the judgment was recorded as delivered on 3rd March, 2004 when it was in fact delivered on 2nd March, 2004. The appellant's counsel explained that upon discovering the error the appellant applied to the superior court, and Waweru, J. ruled that the judgment contained an accidental slip and amended it by substituting 2nd March, 2004 as the date of the judgment, with no order as to costs. The Court of Appeal noted rule 35(1) of the Court of Appeal Rules, which allows correction of clerical mistakes and accidental slips at any time, and observed that the Rules require the Court to enhance the ends of justice. Holding that the striking-out application was unnecessary, and that the lateness of the correction application did not diminish its power to do justice, the Court dismissed the application with no orders for costs on 30th April, 2010. The intended appeal was therefore not struck out and the underlying appeal remained on foot.

Key legal issues

#
01

Effect of a corrected date of judgment on an application to strike out the notice and record of appeal

Holding

The application to strike out failed because the superior court corrected the date of the judgment under section 99 of the Civil Procedure Act, curing the defect complained of; the correction was annexed to the intended supplementary record

Reasoning

The applicant argued that the notice of appeal was ex facie invalid because it bore a wrong date of the judgment (3rd March, 2004 instead of 2nd March, 2004). The Court noted that the superior court (Waweru, J.) had already amended the judgment to correct the accidental slip, substituting 2nd March, 2004 as the date. With that ruling annexed, the alleged defect was cured and the striking-out application became unnecessary.

p. 1
02

Scope of the Court of Appeal's power to correct clerical mistakes under rule 35(1)

Holding

Rule 35(1) of the Court of Appeal Rules empowers the Court to correct a clerical or arithmetical mistake or accidental slip at any time, before or after embodiment in an order, so as to give effect to the Court's intention

Reasoning

The Court invoked rule 35(1) alongside the superior court's correction under section 99 of the Civil Procedure Act, observing that the Rules of the Court require it to enhance the ends of justice. The Court held that the striking-out application was unnecessary and that the timing of the correction application did not limit the Court's powers to do justice between the parties.

p. 1

Legal principles established

#
  • A clerical error in a judgment, such as a wrong date of delivery, may be corrected at any time by the court either of its own volition or on the application of an interested person, and such correction does not render an appeal founded on the judgment defective
  • The fact that an application to correct an error in the superior court is made after an application for striking out the appeal has been filed does not oust the Court of Appeal's power to do justice between the parties

Court orders

#
  1. 1.The application by Notice of Motion dated and filed in this Court on 14th September, 2005 is dismissed
  2. 2.No orders for costs
On appeal from
High Court of Kenya at Nairobi (Milimani)
H.C.C.C. No. 888 of 2001
Jurisdiction invoked
Court of Appeal Rules, rule 35(1), on an application to strike out the notice and record of appeal

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mukawa Hotels Holdings Limited v Beat Koch", Case Analysis (2010). Civil Appeal (Application) No. 191 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/308/eng@2010-04-30

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