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Court of AppealDismissedCivil Application No. NYR. 5 of 2017 (UR 4/2017)· [2017] KECA 782 (KLR)

Leonard Mambo Kuria v Ann Wanjiru Mambo

Court of Appeal of Kenya
23 February 2017
PWP. N. WakiRNR. N. NambuyePKP. O. Kiage
2,893 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause a six-month civil jail sentence for contempt, ruling the applicant failed to show his appeal had any real merit.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal (Waki, Nambuye and Kiage, JJ.A) dismissing an application under Rule 5(2)(b) of the Court of Appeal Rules for stay of execution, release of the applicant, and stay of further proceedings pending an intended appeal against a High Court ruling of 29th September 2016 (Ndungu, J) committing the applicant to six months' civil jail for contempt. The applicant contended the contempt ruling mis-described him as 'Leonard Wanjiru Mambo' instead of 'Leonard Mambo Kuria', introducing a stranger to the proceedings. The court found the applicant failed to authenticate his uncertified copy of the ruling, while the trial judge had perused the original signed ruling on the court file and confirmed there was no mis-description; the body of the ruling referred only to 'the applicant'. The arguability test under Rule 5(2)(b) therefore failed, and the nugatory test was not reached. The court also censured both counsel for lack of candour, noting the applicant's motion was a rehash of one withdrawn before the High Court. Assuming without accepting an error existed, the court gave obiter guidance: Sections 99 and 100 of the Civil Procedure Act vest power to correct records as an exception to functus officio, Section 99 codifies the Slip Rule, and a Notice of Motion under Order 51 Rule 1 is the prescribed procedure. The application was dismissed with costs.

Key legal issues

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01

Whether the applicant established an arguable appeal on the alleged mis-description of his name in the contempt ruling

Holding

The court found no arguable appeal: the trial judge had perused the original signed ruling in the court record and confirmed there was no mis-description, and the applicant failed to authenticate his uncertified copy.

Reasoning

The onus lay on the applicant to show the impugned ruling was authentic and contained the alleged error. He exhibited an uncertified copy with no affidavit from former advocates. The trial judge, on perusing the court file, disowned the exhibited ruling and confirmed the record bore the correct name. The body of the ruling referred only to 'the applicant'. The first Rule 5(2)(b) test was therefore not met.

p. 4
02

The appropriate procedure for rectifying clerical errors under Sections 99 and 100 of the Civil Procedure Act

Holding

Assuming without accepting an error existed, the court clarified (expressly as obiter) that Sections 99 and 100 vest power to correct records as an exception to functus officio, and a Notice of Motion under Order 51 Rule 1 is the prescribed procedure.

Reasoning

Section 99 (the Slip Rule) permits correction of clerical or arithmetical mistakes in judgments, decrees or orders at any time, but does not permit the court to sit on appeal over its own decision or to alter the substance of a judgment. Section 100 permits amendment at any time to determine the real question in issue. Neither section prescribes a procedure, so Order 51 Rule 1 applies.

p. 5

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy both the arguability test and the nugatory test; nugatory includes being rendered worthless, futile, invalid or trifling.
  • Sections 99 and 100 of the Civil Procedure Act vest a general power to correct or amend court records and are an exception to the functus officio doctrine.
  • Where no procedure is prescribed under Sections 99 and 100 CPA, a Notice of Motion under Order 51 Rule 1 of the Civil Procedure Rules is the prescribed procedure.

Court orders

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  1. 1.The application for stay of execution pending the intended appeal be and is hereby dismissed with costs

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Appellate Jurisdiction ActSections 3, 3A & 3B
  • Civil Procedure ActSection 99
  • Civil Procedure ActSection 100
  • Civil Procedure RulesOrder 51 Rule 1

Cases cited (5)

  • Reliance Bank Ltd v Norlake Investments Ltd
    [2002] 1 EA 227

    Meaning of 'nugatory' in the Rule 5(2)(b) second test

  • Jersey Evening Post Limited vs. Ai Thani
    [2002] JLR 542

    Functus officio doctrine does not prevent correction of clerical errors before perfection of the order

  • Republic v Attorney General & 15 others, Ex-Parte Kenya Seed Company Limited & 5 others
    [2010] eKLR

    Section 99 CPA codifies the Slip Rule as part of inherent jurisdiction; limits on its application

  • Newmont Yandal Operations Pty Ltd v The J. Aron Corp & The Goldman Sachs Group Inc
    [2007] 70 NSWLR 411

    Inherent jurisdiction extends to correcting a judgment that does not represent the court's intention

  • Lakhamshi Brothers Ltd v R. Raja & Sons
    [1966] EA 313

    Slip rule applies to give effect to the intention of the court when it gave judgment

On appeal from
High Court of Kenya at Nakuru
H.C. Matrimonial Cause No. 10 of 2015
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules; Sections 3, 3A & 3B of the Appellate Jurisdiction Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Leonard Mambo Kuria v Ann Wanjiru Mambo", Case Analysis (2017). Civil Application No. NYR. 5 of 2017 (UR 4/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/782/eng@2017-02-23

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