Nyakinyua and Kange’ei Farmers Company Limited v Kariuki and Gatecha Resources Limited [1983] KECA 108 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed interest on a refunded land payment runs from the High Court judgment, not the appeal, and slip-rule corrections can't change deliberate decisions.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the draft order should be amended to include the eviction order allowed on the respondent's cross-appeal on October 27, 1982
- 2.Whether the fourth paragraph of the draft order should be amended so that interest at court rates on Kshs 505,000 runs from the date of the Court of Appeal judgment (October 27, 1982) rather than the High Court judgment (January 16, 1979)
- 3.Whether the court's earlier order as to the date from which interest runs can be corrected under the slip rule (Rule 35 of the Court of Appeal Rules)
Key legal issues
#Whether the slip rule can be invoked to alter the date from which interest awarded by the Court of Appeal runs
No. The Court of Appeal's order was that interest at court rates on Kshs 505,000 runs from the date of the High Court judgment (January 16, 1979). The matter was not overlooked; it was argued, and the judgment gave effect to the court's intention. The slip rule is therefore inapplicable, whether the order was right or wrong.
Rule 35 confines correction to clerical or arithmetical mistakes or errors from accidental slip or omission, made to give effect to the court's intention. Here the interest question was fully argued before the appellate bench (Law JA recorded counsel's competing submissions) and deliberately decided. Changing the start date would alter the substance of the judgment, not conform the order to it. The rule also cannot be applied to a judgment given per incuriam, and a member of the original bench cannot himself amend it.
From what date interest on the refund of Kshs 505,000 (money paid under a void controlled transaction) runs
From the date of the High Court judgment, January 16, 1979, until payment, because the sum became repayable as a debt when the High Court decided that specific performance could not be decreed.
Law JA had held the Kshs 505,000 became repayable as a debt only when the court decided specific performance could not be decreed. Kneller JA construed 'the court' as the High Court, not the Court of Appeal, since Law JA would have said 'this court' if he meant the appellate bench. The High Court's certainty on this point was not dispelled by the appeal, so interest follows the ordinary rule for judgment debts and runs from the High Court award.
Whether the eviction order made on the cross-appeal must appear in the draft order
Yes. The eviction order was sought in the notice of cross-appeal of September 10, 1979 and allowed with costs in the orders of October 27, 1982; its inclusion is a formal amendment necessary for the draft accurately to reflect what the court ordered.
Counsel for the respondent instructed that the appellant had already left the suit property, so the amendment was formal but necessary for accuracy. Although the appellant's advocate at the hearing had submitted the High Court could not have made an eviction order, the point was not elaborated and the order had already been allowed by the court.
Legal principles established
#- The slip rule (Rule 35) permits correction only of clerical or arithmetical mistakes or accidental slips or omissions, so as to give effect to the court's intention when judgment was given; it cannot be used to amend a deliberate, substantive order merely because a party considers it unclear or wrong, even if the order was per incuriam.
- A judge who sat as the third member of the court that gave the judgment cannot, sitting alone on a reference, amend that judgment under the slip rule or any other rule.
- Where money paid under a transaction void under the Land Control Act is refunded by court order, interest at court rates runs from the date of the High Court judgment (when the debt became repayable), not from the date of the appellate judgment, even if the award is reversed on appeal.
Court orders
#- 1.The draft order is amended to include the order that 'The plaintiff be evicted from the suit property forthwith'
- 2.Interest at court rates on the Kshs 505,000 with costs is to run from the date of the High Court judgment of January 16, 1979 until payment
- 3.Either party dissatisfied with this decision may apply informally now, or by writing to the Registrar within seven days, for it to be varied, discharged or reversed by the court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya
- Not stated in the judgment
- Jurisdiction invoked
- Reference by the respondent on the draft order of the Court of Appeal, dealt with under Rule 35 of the Court of Appeal Rules (correction of errors / slip rule)
Relief refused
#Amendment of the fourth paragraph of the draft order so that interest on Kshs 505,000 runs from the date of the appeal judgment (October 27, 1982) instead of the High Court judgment
The court's earlier order was that interest runs from the date of the High Court judgment; the respondent's managing director had the money from about October 31, 1974, and the debt became repayable when the High Court decided specific performance could not be decreed. The slip rule cannot be used to change a substantive order that was not a clerical or arithmetical mistake.
Costs
No costs order made on the reference; the draft order as amended provides that the Kshs 505,000 award carries costs of that issue to the plaintiff and interest at court rates from January 16, 1979 until payment.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
If this order about interest was a mistake it was not a clerical or arithmetical one and to make the interest run from the date of the appeal judgment would not be correcting its order to make it accord with its judgment.
The upshot is that the draft should be amended to include an order that : 'The plaintiff be evicted from the suit property forthwith' and the interest at court rates on the Kshs 505,000 with costs should be from the date of the judgment 'of the High Court on January 16, 1979' until payment.
It cannot be applied where a judgment has been given per incuriam even if, for example, the attention of this court has not been drawn to, and the court is ignorant of, a statutory amendment of the law.
interest on other sums awarded by a High Court or on a judgment debt run from the date of the award in that court and not this one though the award or order for payment of the debt may be reversed on appeal
If either party is dissatisfied with this decision and wishes to have it varied, discharged or reversed by the court it may apply for this informally now or by writing to the Registrar within seven days (from hearing it delivered today or reading a copy of it).
Issues in the judgment
#The judgment does not name the parties or the appeal number; the parties are identified only as 'the plaintiff' and 'the defendant' and the case title/number cannot be ascertained from the text.
The judgment records the appellant's advocate's submission that the High Court could not have made an eviction order, but no ruling is given on that substantive point; it is treated only as a formal drafting amendment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyakinyua and Kange’ei Farmers Company Limited v Kariuki and Gatecha Resources Limited [1983] KECA 108 (KLR)", Case Analysis (1983). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1983/108/eng@1983-10-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.