James Nyamboga Masogo v Kipkebe Limited [2011] KECA 378 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a wrongly dated decree is a fixable clerical error, not grounds to strike out an entire appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a decree bearing the wrong date of 8th June 2007 instead of 7th June 2007 is so fatally defective as to cause the record of appeal to be struck out
Key legal issues
#Whether a wrongly dated decree renders a record of appeal fundamentally defective
No. The date in the judgment takes priority over the date in the decree; the error was excusable and curable via a supplementary record under rule 92.
The court found only one judgment in existence, correctly dated 7th June 2007. The decree erroneously bore 8th June 2007 following extraction. Relying on its own precedent in Simon Kinyua v Everready Batteries (K) Ltd, the date in the judgment takes priority. The applicant could have lodged a supplementary record under rule 92 but opted for the drastic strike-out route. Guided by the overriding objective, the court refused to allow a technicality to defeat the appeal.
Legal principles established
#- Where there is a conflict of dates between the judgment and the decree, the date shown in the judgment takes priority
- A wrongly dated decree extracted through clerical error is not a fatal defect warranting striking out of an appeal; the overriding objective prevails over technical objections, and the remedy lies in a supplementary record of appeal
Court orders
#- 1.Application to strike out the record of appeal dismissed
- 2.Respondent ordered to file and serve a supplementary record of appeal containing the amended decree within 30 days
- 3.Costs shall be in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kericho
- HCCC No. 56 of 2004
- Jurisdiction invoked
- Rule 80 of the Court of Appeal Rules (application to strike out record of appeal)
Relief refused
#Striking out of the record of appeal for a defective decree
Court declined to allow a technical objection to hinder the interests of justice; the defect was curable by a supplementary record
Costs
Costs shall be in the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
where there is a conflict of dates in the judgment and the decree like in this case, the date of the judgment as shown in the judgment takes priority
being cognizant of the overriding objective and not permitting technical objections to hinder the interests of justice we decline to grant the application
under rule 92 of the Rules the applicant could have lodged a supplementary record of appeal to incorporate the correct document so as to enable the appeal being properly determined
We dismiss the application. Costs shall be in the appeal.
Issues in the judgment
#Judgment states the judgment is correctly dated 7th June, 2010, which conflicts with the elsewhere-stated delivery date of 7th June, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- S J v Francesco Di Nello & another [2015] KECA 606 (KLR)[2015] KECA 606 (KLR)19 Jun 2015applied
Cite this brief
#Cite this brief
Caselaw, "James Nyamboga Masogo v Kipkebe Limited [2011] KECA 378 (KLR)", Case Analysis (2011). Civil Appeal (Application) No. 225 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/378/eng@2011-02-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.