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Court of AppealDismissedNotice of Motion dated 15th March 2021 (Court of Appeal, Nairobi)· [2024] KECA 968 (KLR)

Shah & 2 others v Mercantile Life and General Assurance Company Limited & 2 others (Suing on Behalf of the International Air Transport Association - IATA) (Civil Appeal (Application) 146 of 2015) [2024] KECA 968 (KLR)

Court of Appeal of Kenya
26 July 2024
2,137 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to correct a court order because the applicants waited over three years and the order matched the original judgment.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal (Asike-Makhandia, M'Inoti and Ngugi, JJ.A) on a Notice of Motion dated 15th March 2021 under rule 35(2) of the Court of Appeal Rules, in which the applicants sought correction of the order extracted on 11th January 2018 pursuant to the Court's judgment of 26th May 2017, contending that the order did not correspond with the judgment. The underlying judgment had partially allowed the respondents' appeal on one ground only, holding that the High Court misdirected itself in dismissing a suit that had been stayed pending arbitration, with no orders as to costs. The applicants argued two material discrepancies: that the order purported to set aside the High Court judgment when the Court had done no such thing, and that it failed to reflect the dismissal of the appeal against them. The respondents countered that the draft order was sent for approval and that the applicants acquiesced; the order gave effect to the Court's intention, and the application was barred by laches, coming more than three years after the order was settled. The Court restated the three conditions for invoking the slip rule and, applying Mukuru Munge v Florence Shingi Mwawana, held that the jurisdiction is limited to correcting accidental slips and cannot be used to revisit the merits. It found the order corresponded with the judgment, noted subsequent arbitral and execution proceedings in which the applicants participated, and dismissed the application with costs to the respondents as an abuse of process.

Key legal issues

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01

Whether the extracted order corresponds with the judgment

Holding

The order faithfully captures the Court's partial allowance of the appeal and dismissal of the rest; no discrepancy was established.

Reasoning

The Court re-read the relevant paragraph of its 2017 judgment and compared it with the extracted order. It found the partial success (reinstatement of the suit stayed pending arbitration) reflected in the first limb of the order and the dismissal of the remaining prayers in the remainder. No interpretation of the order contradicted the judgment's intent, so rule 35(2) was not engaged.

p. 4
02

Whether laches and acquiescence bar the correction application

Holding

Yes. The applicants slept on their rights for over three years while the arbitral award was made, adopted and executed.

Reasoning

The Court noted that since extraction of the order the dispute had gone to arbitration, an award had been made, adopted by the court and execution commenced, with the applicants actively participating. Coming so late to impugn an order already acted upon was laches, indolence, an afterthought and an abuse of process.

p. 4

Legal principles established

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  • The slip rule jurisdiction under rule 35 is confined to correcting clerical or arithmetical mistakes or errors from accidental slip or omission so as to give effect to the Court's intention, and cannot be used to revisit the merits of a previous judgment.
  • Three conditions must be demonstrated for rule 35 correction: an identifiable clerical or arithmetical mistake or readily noticeable error; that it arose from accidental slip or omission; and that rectification is necessary to give effect to the Court's intention.

Court orders

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  1. 1.The application dated 15th March 2021 is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Court of Appeal Rulesrule 35(1) and 35(2)
  • Court of Appeal Rulesrule 34

Cases cited (4)

  • Synergy Industrial Credit Limited vs. Cape Holdings Limited [2021] eKLR
    [2021] eKLR
  • Nguruman Limited vs. Shompole Group Ranch & Another [2014] eKLR
    [2014] eKLR
  • Republic v District Commissioner, Siaya & Another, Ex-Parte Nicholas Oluoch Luanda [2014] eKLR
    [2014] eKLR
  • Mukuru Munge v Florence Shingi Mwawana & 2 Others [2016] eKLR
    [2016] eKLR
On appeal from
Court of Appeal of Kenya
not stated (judgment of 26th May 2017, Asike-Makhandia, Ouko and M'Inoti, JJ.A)
Jurisdiction invoked
Rule 35(1) and 35(2) of the Court of Appeal Rules (slip rule)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Shah & 2 others v Mercantile Life and General Assurance Company Limited & 2 others (Suing on Behalf of the International Air Transport Association - IATA) (Civil Appeal (Application) 146 of 2015) [2024] KECA 968 (KLR)", Case Analysis (2024). Notice of Motion dated 15th March 2021 (Court of Appeal, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/968/eng@2024-07-26

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