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Court of AppealDismissedNot stated in the judgment

Richard Saidi v Manasse Lumwachi Hajani [1988] KECA 13 (KLR)

Court of Appeal of Kenya
19 September 1988
956 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that execution must follow the decree's figures, and costs must be taxed before any execution proceeds.

What this practically means

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Executive summary

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This first appeal before the Court of Appeal at Kisumu (Gachuhi, Nyarangi and Apaloo JJA) concerned pure arithmetic in a debt claim. The appellant alleged that judgment had been entered for Kshs 68,776.25 rather than the Kshs 48,776.25 claimed in the plaint, and that he had overpaid by some Kshs 20,000. Gachuhi JA examined the original record and found the appellant had been misled by the typed record, which had misread the figure 4 as 6 in the handwritten judgment of Contran J. The draft decree signed by the deputy registrar showed a principal of Kshs 48,776.25 with interest of Kshs 1,095.80, confirming the lower figure. The court held that execution is based on the decree and only the amount in the decree is authoritative; a party aggrieved must attack the decree, not the figure he believes was entered. On costs, the court found the bill of costs filed on November 24, 1988 had never been taxed and no certificate of costs existed as required by Order XX rule 8 of the Civil Procedure Rules. Counsel's own letter conceded an arithmetical error of about Kshs 1,178. The court directed that the bill be taxed, with interest thereafter adjusted - either wiping out the balance of Kshs 2,509.55 said to remain outstanding or producing a refund of any excess. The appeal was dismissed, and because the dispute was a mere misunderstanding over figures, each party was ordered to bear his own costs. Apaloo JA, in a short concurring opinion, agreed the appeal raised a pure question of arithmetic and disclosed no ground for interference. The decision below was affirmed.

Questions the Court framed

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

  1. 1.Whether judgment was entered for Kshs 48,776.25 or Kshs 68,776.25/68,477.25
  2. 2.Whether the appellant paid Kshs 20,000 in excess of the amount due
  3. 3.Whether the bill of costs was properly taxed before execution
  4. 4.Whether any ground exists for interfering with the judgment and decree

Key legal issues

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01

Correct sum for which judgment was entered

Holding

Judgment was entered for Kshs 48,776.25, not Kshs 68,776.25; the appellant was misled by the typed record misreading the digit 4 as 6 in the judge's handwriting.

Reasoning

The court examined the original record and the handwritten judgment of Contran J, finding the typed record had been misread. The draft decree signed by the deputy registrar showed the principal as Kshs 48,776.25 with interest of Kshs 1,095.80, totalling Kshs 49,872.05, confirming the lower figure.

p. 1
02

Basis of execution

Holding

Execution is founded on the decree, and only the amount in the decree is authoritative for execution.

Reasoning

Once judgment is entered, a decree issues before execution; any challenge to the sums must be directed at the decree itself rather than at the figure a party believes was entered in the judgment.

p. 1
03

Taxation of costs before execution

Holding

The bill of costs was never taxed; no certificate of costs was found on the file as required, and the bill should have been taxed before execution, with interest thereafter adjusted.

Reasoning

Order XX rule 8 of the Civil Procedure Rules requires a certificate of costs. Counsel's own letter conceded an arithmetical error of about Kshs 1,178, showing the certified figure was unreliable. After taxation, interest must be adjusted, either wiping out the balance or producing a refund.

p. 2

Legal principles established

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  • Execution must be based on the decree, and it is the amount in the decree, not a party's assertion of the judgment figure, that is treated as correct for execution purposes.
  • A bill of costs must be taxed and certified before execution; an untaxed bill renders the process more costly as interest accrues.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Each party to bear his own costs of the appeal
  3. 3.The bill of costs to be taxed; after taxation the interest claimed to be adjusted, which will either wipe out the outstanding balance or result in a refund of any excess paid

The bench

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

majority

Wrote the judgment

Delivered the main judgment analysing the arithmetic of the claim, judgment, decree, interest and taxed costs.

September 19, 1988, Gachuhi JA delivered the following Judgment.p. 1
concurring

Wrote the judgment

Agreed with Gachuhi JA's analysis and concluded the appeal should be dismissed without costs.

Having had and considered Gachuhi, JA’s analysis of this matter, I find no reason to differ from his conclusion. So like him, I would also dismiss this appeal without costs.p. 2
majority
On appeal from
High Court of Kenya
Jurisdiction invoked
First appeal to the Court of Appeal (statutory appellate jurisdiction; provision not stated in the judgment)

Relief refused

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Appellant's challenge to the judgment figures on the basis that Kshs 20,000 was paid in excess

The decree, not the judgment figure contended by the appellant, governs execution; the figure was Kshs 48,776.25, the appellant having been misled by the typed record.

p. 1

Interference with the judgment on the costs/figures complaint

No ground for interference; the proper course was taxation of the uncertified bill of costs before execution.

p. 2

Costs

Each party to bear his own costs of the appeal

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.

Execution is therefore based on the decree. It is the amount in the decree that should be considered as correct for the purpose of execution.
p. 1Decree as the basis of execution
The appellant should attack the decree and not the figure he considers the judgment was entered for.
p. 1Proper target of challenge to sums
I think Mr Azangalala should have taxed his bill before execution. Since there is amount due, it should be taxed.
p. 2Taxation of costs before execution
The appeal is therefore dismissed with each party bearing his costs.
p. 2Final orders and costs

Issues in the judgment

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minor

The judgment text is a degraded copy with several gaps and apparent typographical errors in figures and words (e.g. 'Kshs 68,7776.25', 'order XX rule 8()'), which complicates verification of the quoted figures.

minor

The coram signatures list Nyarangi and Gachuhi but the certification block omits Apaloo's presence being separately recorded beyond his concurrence; no material contradiction in holdings.

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, "Richard Saidi v Manasse Lumwachi Hajani [1988] KECA 13 (KLR)", Case Analysis (1988). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/13/eng@1988-09-19

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