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ELCStruck OutRuling on Notice of Motion dated 23rd September 2019 in Civil Suit No. 17 of 2008· [2020] KEELC 3925 (KLR)

Mathingira Wholesalers Ltd v Kimwatu Kanyungu & 5 others [2020] KEELC 3925 (KLR)

Environment and Land Court
23 January 2020
1,643 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out an attempt to release disputed rent money because the decree being relied on did not match the Court of Appeal's actual judgment.

What this practically means

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Executive summary

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The Applicants, by a notice of motion dated 23rd September 2019, sought joinder of intended 7th and 8th Defendants, substitution of parties to replace deceased persons, revival of the suit in favour of the 3rd and 4th Applicants, and release of rent monies held in a joint account of the parties' advocates pursuant to a court order of 18th February 2013. The Respondents opposed the release of funds, contending that the decree extracted from the Court of Appeal in Civil Appeal No. 6 of 2017 did not correspond with that court's judgment of 21st March 2018, which had dismissed the Respondents' suit and upheld the Applicants' counter-claim for accounts. The Respondents had filed an application before the Court of Appeal seeking rectification of the decree under Rule 35 of the Court of Appeal Rules, and a bill of costs was pending taxation. Justice M.C. Oundo applied the Rule 35 principles set out in Nguruman Limited v Shompole Group Ranch and found that the extracted decree was at great variance with the Court of Appeal judgment. He held that the Applicants' steps were prejudicial to the Respondents pending the rectification application, and that releasing the monies would amount to premature execution. The entire application was struck out with costs to the Respondents.

Key legal issues

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01

Whether funds held pursuant to a court order may be released where the decree underlying them is under challenge

Holding

Release was refused as premature because the decree was at variance with the Court of Appeal judgment and an application to rectify it was pending

Reasoning

The court noted that the extracted decree from the Court of Appeal did not match that court's judgment of 21st March 2018, and that the Respondents had filed an application under Rule 35 of the Court of Appeal Rules to correct the error. Releasing the rent monies in the interim would amount to premature execution and prejudice the Respondents, who also had a pending bill of costs for taxation.

p. 3
02

The scope of Rule 35 of the Court of Appeal Rules on correction of errors in judgments and orders

Holding

The court applied the Rule 35 test as stated in Nguruman Limited v Shompole Group Ranch: a clerical or arithmetical mistake or error from an accidental slip or omission may be corrected to give effect to the court's intention

Reasoning

Relying on Nguruman Limited, the court set out the three requirements for rectification: an identified clerical or arithmetical mistake or error; that it arose from an accidental slip or omission; and that rectification is necessary to give effect to the court's intention. The court noted that the judge who made the order is best placed to interpret it.

p. 3

Legal principles established

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  • A decree extracted that does not correspond with the judgment cannot be relied upon or executed upon; release of funds in reliance on a disputed decree is premature pending rectification

Court orders

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  1. 1.The application dated 23rd September 2019 is struck out
  2. 2.Costs of the application to the Respondents

Authorities

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Legislation

  • Court of Appeal RulesRule 35(1)(2)
  • Appellate Jurisdiction ActSection 2

Cases cited (1)

  • Nguruman Limited v Shompole Group Ranch & Another
    [2014] eKLR
Jurisdiction invoked
Original suit (Civil Suit No. 17 of 2008) and interlocutory application under the court's inherent procedural jurisdiction; Court of Appeal Rules Rule 35(1)(2) considered

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, "Mathingira Wholesalers Ltd v Kimwatu Kanyungu & 5 others [2020] KEELC 3925 (KLR)", Case Analysis (2020). Ruling on Notice of Motion dated 23rd September 2019 in Civil Suit No. 17 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3925/eng@2020-01-23

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