Dominic Alois George Omenye t/a Omenye & Associates v Prime Bank Limited [2017] KECA 547 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that the 'slip rule' corrects genuine clerical errors in judgments but cannot be used to rewrite decisions you simply disagree with.
What this practically means
#Executive summary
#Key legal issues
#Purpose and scope of the slip rule under section 99 of the Civil Procedure Act
The jurisdiction exists only to correct clerical or arithmetical mistakes or errors arising from accidental slip or omission so as to give effect to the court's manifest intention; it does not extend to changing the substance of a judgment.
Relying on Raniga v. Jivraj and Lakhamshi Brothers Ltd v R. Raja & Sons, the Court held that corrections are permissible only where the court is satisfied it is giving effect to the intention of the court at the time of judgment or to what it clearly would have intended had the matter been brought to its attention. An error must be one in expressing the manifest intention of the court.
Whether deduction of alleged compound interest on the disallowed Kshs 234,000 was correctable under section 99
No. Azangalala, J.'s judgment made no provision for such a deduction and contained no error or omission in expressing his manifest intention; ordering the deduction would fundamentally change the judgment.
The trial judge disallowed Kshs 234,000 as unproven but made no finding on compound interest, and no evidence supported such a finding. Agreeing with the appellant would entail fundamentally changing the judgment in a manner the judge did not intend, amounting to rewriting the judgment under the guise of correcting an error.
Res judicata and re-litigation of an issue determined on appeal
The issue of the interest on the disallowed sum was substantively presented, fully argued and rejected in Civil Appeal No. 88 of 2005; the appellant could not re-characterise it as a correctable error or omission before the High Court.
The appellant had raised the issue as a substantive ground of appeal, showing he did not believe it was a mere slip. The Court in Civil Appeal No. 88 of 2005 considered and rejected it. Amin, J. could not be faulted for refusing to entertain a claim this Court had effectively determined.
Competence of the appeal for want of leave
The objection failed because the respondent did not apply to strike out the record within 30 days as required by rule 84 of the Court of Appeal Rules, and raised the issue belatedly.
The respondent raised the leave issue belatedly, denying the appellant a proper opportunity to respond. Directions had been given for written submissions without leave to reply. Rule 84 required the respondent to move to strike out within 30 days of service of the record; having failed to do so, it was precluded from raising the objection. The appeal was therefore determined on its merits.
Legal principles established
#- The power under section 99 of the Civil Procedure Act to correct clerical or arithmetical mistakes, or errors arising from accidental slip or omission, may be exercised only to give effect to the manifest intention of the court when it gave its judgment, not to vary or rewrite the substance of the judgment
- An issue that was substantively raised, argued and determined on appeal cannot later be re-litigated in the High Court as an alleged error or omission correctable under the slip rule
- Under rule 84 of the Court of Appeal Rules, a respondent who contends that no appeal lies must apply to strike out the record of appeal within 30 days of service of the record, failing which the respondent is precluded from raising the objection
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal to the respondent
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 1649 of 2001
- Jurisdiction invoked
- First appeal to the Court of Appeal against a ruling of the High Court (Court of Appeal Rules; the appeal challenged exercise of the High Court's power under section 99 of the Civil Procedure Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dominic Alois George Omenye t/a Omenye & Associates v Prime Bank Limited [2017] KECA 547 (KLR)", Case Analysis (2017). Civil Appeal No. 287 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/547/eng@2017-05-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.