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Supreme CourtAllowedPetition (Application) 26 (E029) of 2022

Trattoria Limited v Maina & 3 others

Supreme Court of Kenya
30 August 2024
2,013 words in judgment
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AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Supreme Court can fix clerical errors in its rulings without reopening the case.

What this practically means

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The Supreme Court of Kenya ruled that it can correct obvious clerical mistakes in its own decisions, like forgetting to award costs to the winning party. This is called the 'slip rule.' The court cannot use this power to change the substance of its ruling or sit in appeal over itself. In this case, the court fixed an oversight where costs for the appeal were omitted, awarding them to the successful party.

Executive summary

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This ruling by the Supreme Court of Kenya (Koome, CJ; Ibrahim, Wanjala, Ndung'u, Ouko, SCJJ) concerns an application by the 1st respondent to review the court's ruling of November 25, 2022, which had dismissed the appellant's appeal for lack of jurisdiction and awarded costs only for the application, not the appeal. The 1st respondent sought an order awarding costs of the appeal, arguing that the omission was a clerical error or oversight. The court found that the application did not meet the grounds for review under section 21A of the Supreme Court Act (fraud, nullity, consent, or repealed law). However, the court invoked its jurisdiction under section 21(4) (the slip rule) read with Rule 28(5) of the Supreme Court Rules, holding that the omission of costs was a clerical error that could be corrected without altering the substance of the ruling. The court noted that costs are discretionary but, in this case, the successful party (1st respondent) was entitled to costs because the appeal was dismissed and costs had been incurred in preparation. The court allowed the application and ordered that the costs of the appeal be borne by the appellant. The ruling clarifies the distinction between review under section 21A and correction of clerical errors under the slip rule, and reaffirms the court's discretion on costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the application for review of the ruling dated November 25, 2022 meets the grounds set out in section 21A of the Supreme Court Act and the Fredrick Outa case.
  2. 2.Whether the court can correct an alleged oversight or clerical error regarding costs under section 21(4) of the Supreme Court Act (the slip rule).

Key legal issues

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01

Whether the application for review falls within the grounds under section 21A of the Supreme Court Act.

Holding

The application does not meet any of the grounds under section 21A because the 1st respondent did not allege fraud, lack of jurisdiction, consent, or repealed law.

Reasoning

The court examined each ground in section 21A and found that the 1st respondent only claimed an oversight or clerical error regarding costs, which does not fall under fraud, deceit, nullity, consent, or repealed law. Therefore, the application could not succeed under section 21A.

02

Whether the court can correct the omission of costs under the slip rule (section 21(4) of the Supreme Court Act).

Holding

Yes, the court can correct an oversight or clerical error regarding costs under the slip rule, as the omission was a clerical error that did not alter the substance of the ruling.

Reasoning

The court noted that the 1st respondent's grounds aligned with section 21(4) despite citing section 21A. The omission of costs was a clerical error that could be corrected to steer the ruling towards logical perfection. The court invoked its jurisdiction under section 21(4) read with Rule 28(5) to clarify its intention on costs.

03

Whether the successful party is entitled to costs of the appeal as of right.

Holding

No, costs are at the discretion of the court, but in this case, the court exercised its discretion to award costs to the successful party.

Reasoning

The court reiterated that costs follow the event is a general rule but not binding. However, since the appellant's appeal was dismissed for lack of jurisdiction, the 1st respondent was the successful party and had incurred costs in preparing for the hearing. The court therefore awarded costs to the 1st respondent.

Legal principles established

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  • The slip rule allows the Supreme Court to correct obvious clerical errors without changing the decision's substance.
  • Review under section 21A of the Supreme Court Act requires fraud, lack of jurisdiction, consent, or repealed law.
  • Costs are discretionary; the general rule that costs follow the event is not binding on the Supreme Court.
  • A successful party is entitled to costs even if the appeal was dismissed before oral hearing, as preparation costs were incurred.
  • The slip rule cannot be used to substantially alter a judgment or sit on appeal over it.

Court orders

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  1. 1.The application dated March 27, 2024 is allowed.
  2. 2.The costs of the appeal dated September 5, 2022 shall be borne by the appellant/respondent.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Martha Karambu Koome
M K KoomeCJ
Currently serving
majority

Wrote the judgment

majority
Smokin Charles Wanjala
S C WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
William Ouko
W OukoSCJ
Currently serving
majority
On appeal from
Supreme Court of Kenya
Petition No 26 (E029) of 2022
Jurisdiction invoked
Section 21A of the Supreme Court Act, Cap 9B; Section 21(4) of the Supreme Court Act; Rule 28(5) of the Supreme Court Rules 2020

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The former is what is commonly referred to as the slip rule, where this court can correct errors apparent on the face of the judgment, ruling or order of the court and where such correction is obvious and does not generate any controversy on the decision of the court.
p. 6 Slip rule
In the Jasbir Singh Rai case (supra), we held in paragraph 8 that, while the general rule is that costs follow the event, this court is not bound to adhere to it.
p. 6 Costs discretion

Key timeline

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2022-09-05
Appeal filed by the appellant.
2022-11-25
Supreme Court dismissed the appeal for lack of jurisdiction, awarding costs only for the application, not the appeal.
2024-03-27
1st respondent applied to correct the omission of costs for the appeal.
2024
Supreme Court allowed the application under the slip rule, awarding costs of the appeal to the 1st respondent.

Practical implications

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For lawyers

Use slip rule for clerical fixes

When drafting applications, clearly distinguish between review under section 21A (fraud, nullity, etc.) and correction under the slip rule (section 21(4)). Citing the wrong provision won't kill your application if the grounds fit the slip rule. Always check if an omission is a clerical error before filing a full review.

For businesses

Costs can be corrected later

If you win a case but the court forgets to award costs, you can apply to correct that oversight without reopening the entire dispute. The Supreme Court confirmed it can fix such errors under the slip rule. This saves time and money compared to a full review or appeal.

For individuals

Winning party can claim costs

If you win a case in the Supreme Court, you are generally entitled to costs even if the case was dismissed early. The court has discretion, but a successful party should expect to recover costs incurred in preparing for the hearing. If costs are omitted, you can ask the court to correct the error.

Frequently asked questions

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What is the slip rule in Kenya Supreme Court?+

The slip rule allows the Supreme Court to correct obvious clerical errors or oversights in its judgments, rulings, or orders without changing the substance of the decision. It is found in section 21(4) of the Supreme Court Act.

Can the Supreme Court review its own judgment in Kenya?+

Yes, but only on limited grounds under section 21A of the Supreme Court Act: fraud, lack of jurisdiction, consent, or repealed law. The slip rule is different—it fixes clerical errors, not substantive mistakes.

Who pays costs in a Supreme Court case in Kenya?+

Costs are at the court's discretion. The general rule is that the losing party pays the winning party's costs, but the Supreme Court is not bound by this rule. In this case, the court awarded costs to the successful party even though the appeal was dismissed early.

What happens if the Supreme Court forgets to award costs in Kenya?+

You can apply to the court under the slip rule (section 21(4) of the Supreme Court Act) to correct the omission. The court will fix the clerical error without reopening the case, as long as the correction does not change the substance of the ruling.

Cite this brief

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Cite this brief

Caselaw, "Trattoria Limited v Maina & 3 others", Case Analysis (2024). Petition (Application) 26 (E029) of 2022. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2024/54/eng@2024-08-30

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