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Court of AppealAllowedCivil Appeal (Application) 203 of 2008

SOUTH NYANZA SUGAR COMPANY LIMITED v SILVAN KETCH [2010] KECA 459 (KLR)

Court of Appeal of Kenya
5 February 2010
Philip Kiptoo TunoiP.K. TunoiEOE.O. O'KubasuJNJ.G. Nyamu
595 words in judgment
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The bottom line

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Kenya's Court of Appeal threw out an appeal because it was built on a decree that didn't match the High Court's actual judgment.

What this practically means

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Executive summary

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This was an interlocutory application under rules 42, 43 and 80 of the Court of Appeal Rules by the respondent, Silvan Ketch, seeking to strike out an appeal filed by South Nyanza Sugar Company Limited against the judgment of Kaburu Bauni, J of the High Court at Kisii delivered on 18th May 2007, which had set aside the subordinate court's judgment and awarded the appellant Shs. 102,498 with costs both in the lower court and costs of that appeal. The appellant lodged a notice of appeal on 25th May 2007, caused a decree to be issued on 15th August 2008, and filed the appeal on 11th September 2008. The court found that the decree incorporated in the record of appeal was completely at variance with the High Court judgment: it omitted the awards of costs, contained words never used by the learned Judge, and was calculated to mislead. The decree had been improperly approved by the Deputy Registrar in contravention of the mandatory provisions of Order XX rule 7 of the Civil Procedure Rules, having been extracted without approval, notice or settlement. The court held that an invalid decree cannot be the basis of an appeal, rendering the appeal incompetent. A single judgment of the full bench of Tunoi, O'Kubasu and Nyamu, JJA allowed the application, struck out Civil Appeal No. 203 of 2008, and awarded the respondent the costs of both the application and the struck out appeal. The High Court judgment itself was not disturbed by this ruling.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the decree extracted by the Deputy Registrar without approval, notice or settlement, contrary to Order XX Rules 6 and 7 of the Civil Procedure Rules, is valid
  2. 2.Whether the extracted decree reflects the judgment of the High Court
  3. 3.Whether an appeal founded on an invalid decree is competent

Key legal issues

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01

Validity of a decree extracted at variance with the judgment

Holding

The decree incorporated in the record of appeal was completely at variance with the High Court judgment and improperly approved by the Deputy Registrar, contravening the mandatory provisions of Order XX rule 7 of the Civil Procedure Rules.

Reasoning

The High Court judgment awarded Shs. 102,498 with costs both in the lower court and costs of the appeal, but the extracted decree omitted the awards of costs. The court held the decree contained words not used by the learned Judge, deliberately calculated to mislead, since adopting it would have erroneously deprived the respondent of costs. A decree extracted without approval, notice or settlement, and at variance with the judgment, is invalid.

p. 2
02

Competence of an appeal founded on an invalid decree

Holding

Because the decree underlying the record of appeal was invalid, the appeal could not stand and was struck out.

Reasoning

The court reasoned that a decree improperly approved and contravening mandatory procedural provisions cannot be the basis of an appeal. The appeal, filed on 11th September 2008 on the strength of a decree issued on 15th August 2008 that was itself invalid, was therefore incompetent. The court exercised its powers under rules 42, 43 and 80 of the Court of Appeal Rules to strike out the appeal and awarded the respondent costs of both the application and the appeal.

p. 2

Legal principles established

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  • A decree that does not conform to the judgment of the court, and is extracted in breach of Order XX rule 7 of the Civil Procedure Rules, is invalid and cannot form the basis of an appeal.
  • An appeal founded on an invalid decree is incompetent and liable to be struck out.

Court orders

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  1. 1.The application to strike out the appeal is allowed
  2. 2.Civil Appeal No. 203 of 2008 is struck out
  3. 3.The respondent, Sylvan Ketch, shall have the costs of the application and of the struck out appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Philip Kiptoo Tunoi
majority
EO
majority
JN
majority
On appeal from
High Court of Kenya at Kisii
H.C.C. Appeal No. 210 of 2001
Jurisdiction invoked
Court of Appeal Rules, rules 42, 43 and 80 (application to strike out appeal)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is plain from the reading of the judgment delivered on 18th May, 2007 that the decree that was incorporated in the record of appeal is completely at variance with the judgment of the superior court and not only contains words which were not used by the learned Judge but, also, words deliberately calculated to mislead.
p. 2Decree at variance with judgment
The extracted decree was, therefore, improperly approved by the Deputy Registrar as it contravened the mandatory provisions of O XX rule 7 of the Civil Procedure Rules.
p. 2Mandatory nature of Order XX rule 7
We allow the application and strike out the appeal being Civil Appeal No. 203 of 2008. The respondent, Sylvan Ketch, shall have the costs of the application and of the struck out appeal.
p. 2Final orders - striking out and costs

Issues in the judgment

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minor

The record of appeal heading and orders spell the respondent's name 'SILVAN KETCH' while the costs order spells it 'Sylvan Ketch'.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "SOUTH NYANZA SUGAR COMPANY LIMITED v SILVAN KETCH [2010] KECA 459 (KLR)", Case Analysis (2010). Civil Appeal (Application) 203 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/459/eng@2010-02-05

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