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Court of AppealDismissedCivil Appeal No. 223 of 2013· [2016] KECA 826 (KLR)

Koross v Komen & 4 others (Civil Appeal 223 of 2013) [2016] KECA 826 (KLR)

Court of Appeal of Kenya
5 February 2016
DMD. K. MusingaSKS. Gatembu KairuAMA. K. Murgor
1,976 words in judgment
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The bottom line

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The Court of Appeal refused to correct its own judgment, confirming that only obvious clerical slips can be fixed after a ruling—not findings a party simply disagrees with.

What this practically means

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Executive summary

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This ruling of the Court of Appeal at Eldoret (Musinga, Gatembu Kairu and Murgor, JJ.A) disposes of a Notice of Motion dated 27th August 2015 by the appellant, William Koross, seeking correction of errors in the Court's judgment of 6th March 2015 in the substantive appeal. The applicant complained that the Court had erroneously found that the 2nd, 3rd, 4th and 5th respondents were not parties to Kakamega High Court Civil Suit No. 43 of 1978 (later Kitale HCCC No. 89 of 1997), whereas Cotran, J had allowed their joinder on 23rd October 1978. He sought substitution of a finding that they were defendants and expungement of two passages from the judgment, so as to enable him execute the decree against them. The respondents opposed, arguing that no amended plaint introduced the third parties as parties, that they testified only as witnesses, and that the finding was substantive and not a correctable slip under rule 35 of the Court of Appeal Rules. The Court, considering rule 35 and its earlier decision in JKN vs HWN, held that a correctable error is one obvious and manifest on the face of the record, not one requiring argument or lengthy submissions. Because the prior judgment had deliberately considered the third party respondents' status and concluded they were not parties, that was a substantive determination outside rule 35. Relying on Article 164(3) of the Constitution and section 3(1) of the Appellate Jurisdiction Act, the Court further held that it was functus officio and could not sit on appeal over its own decision. The application was dismissed with costs to the respondents.

Key legal issues

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01

Scope of rule 35 of the Court of Appeal Rules

Holding

Rule 35 covers only clerical or arithmetical errors and errors arising from accidental slips or omissions; a substantive factual or legal determination reached after consideration does not qualify.

Reasoning

The Court reproduced rule 35 and relied on JKN vs HWN, which defines a correctable error as one obvious and manifest on the face of the record requiring no arguments or sworn depositions. Because the prior judgment deliberately considered the status of the third party respondents and concluded they were not parties, that conclusion was a substantive determination. The applicant sought a change in the substance of the finding, not correction of a slip, and rule 35 therefore provided no avenue for the relief sought.

p. 3
02

Functus officio and the limits of the Court of Appeal's jurisdiction

Holding

Once the Court renders a substantive decision it is functus officio; a rule 35 application cannot be used to invite the Court to sit on appeal over its own judgment.

Reasoning

The Court grounded its jurisdiction in Article 164(3) of the Constitution and section 3(1) of the Appellate Jurisdiction Act, which confine it to hearing appeals from the High Court or prescribed tribunals. Having made a substantive determination on the status of the third party respondents in its 6th March 2015 judgment, the Court was functus officio as to that determination. Allowing the applicant to seek a contrary finding through rule 35 would be untenable and contrary to the law, as it would amount to appellate review of the Court's own decision.

p. 4

Legal principles established

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  • Rule 35 of the Court of Appeal Rules permits correction only of clerical or arithmetical errors or accidental slips or omissions; a substantive finding or determination in a judgment is not a correctable error under that rule.
  • An error correctable under rule 35 must be an error on the face of the record, obvious and manifest, requiring no arguments or lengthy submissions.
  • Having rendered a substantive decision, the Court of Appeal is functus officio and cannot sit on appeal over its own decision through a rule 35 application.

Court orders

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  1. 1.The Notice of Motion dated 27th August 2015 is dismissed
  2. 2.Costs of the application to the respondents

Authorities

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Legislation

  • Constitution of KenyaArticle 164
  • Constitution of KenyaArticle 164(3)
  • Appellate Jurisdiction ActSection 3(1)
  • Court of Appeal RulesRule 1(2)
  • Court of Appeal RulesRule 35

Cases cited (1)

  • JKN vs HWN
    [2015] eKLR
On appeal from
High Court of Kenya (Environment & Land Court), Kitale
H.C.C.C No. 89 of 1997 (formerly Kakamega HCCC No. 43 of 1978)
Jurisdiction invoked
Article 164(3) of the Constitution and Section 3(1) of the Appellate Jurisdiction Act; application under rules 1(2) and 35 of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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, "Koross v Komen & 4 others (Civil Appeal 223 of 2013) [2016] KECA 826 (KLR)", Case Analysis (2016). Civil Appeal No. 223 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/826/eng@2016-02-05

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