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Court of AppealAllowedCivil Appeal No. 211 of 2001· [2002] KECA 204 (KLR)

Multiple Hauliers E.a. Limited Joseph Ngugi Kamau v John Odongo Hagai

Court of Appeal of Kenya
21 June 2002
JGJ. E. GicheruEOE. O. O'KubasuMKM. Ole Keiwua
797 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an entire appeal because the decree in the record did not match the lower court's judgment — even though both lawyers had approved it.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Kisumu (Gicheru, O'Kubasu and Keiwua, JJ.A.) on the respondents' application under rule 80 of the Court of Appeal Rules to strike out the appeal on the ground that the record of appeal was incurably defective. The applicants, Multiple Hauliers E.A. Limited and Joseph Ngugi Kamau, were appealing against the decision of Tanui J of the High Court at Kisumu dated June 6, 2001 in H.C.C.A. No. 107 of 1999, which had in turn arisen from the subordinate court's judgment of September 7, 1998. The court catalogued the defects in the decree: its date (September 9, 1999) did not correspond with the date of the judgment; judgment had been entered against the defendants jointly and severally but the decree reflected only the first defendant; the decree introduced an interest rate of 8% per annum and a limited interest period not found in the judgment; the first defendant's name was wrongly stated; and the record omitted the November 11, 1999 application for enlargement of time and the ruling of November 23, 1999. Applying rule 85(2)(v) of the Court of Appeal Rules and Order XX rules 6(1) and 7 of the Civil Procedure Rules, and following its own decisions in James Mbugua Macharia v Agnes Wanjiku Mbugua and Catherine Karungari Karl v Gutenter Otto Karl, the court held that counsel's approval of a draft decree cannot cure a decree that does not accord with the judgment, there being no estoppel against the law. The appeal was struck out with costs. No decision on the merits of the underlying appeal was made.

Key legal issues

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01

Whether a record of appeal containing a decree that does not accord with the subordinate court's judgment is fatally defective

Holding

Yes - the appeal was struck out because the decree varied the judgment as to date, parties against whom judgment was entered, and interest, and omitted essential record documents.

Reasoning

The judgment was dated September 7, 1998 but the decree bore September 9, 1999; judgment was entered jointly and severally against the defendants yet the decree showed only one defendant; the decree introduced an interest rate and period not in the judgment; the record omitted the November 11, 1999 application and the November 23, 1999 ruling. Rule 85(2)(v) requires the decree of the subordinate court in the record of appeal, and Order XX rule 7 requires the decree to conform to the judgment. A defective decree renders the appeal incompetent.

p. 2
02

Whether counsel's approval of a draft decree cures its defects

Holding

No - counsel agreeing to the form or contents of a decree does not render a defective decree correct; there is no estoppel against the law.

Reasoning

The court adopted its earlier decision in James Mbugua Macharia v Agnes Wanjiku Mbugua, which in turn relied on Catherine Karungari Karl v Gutenter Otto Karl. Order XX rules 6(1) and 7(6) of the Civil Procedure Rules make it mandatory for a decree to specify clearly all reliefs granted. Counsel who approve a defective order merely agree to a defective order; the decree must still accord with the judgment.

p. 2

Legal principles established

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  • A decree in a record of appeal must conform to the judgment it emanates from; the date of the decree must correspond with the date of the judgment.
  • Approval by counsel of the form or contents of a decree does not cure a defective decree; there can be no estoppel against the law.

Court orders

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  1. 1.The appeal is struck out
  2. 2.The appellants to pay the costs of the striking-out application
On appeal from
High Court of Kenya at Kisumu
H.C.C.A. No. 107 of 1999
Jurisdiction invoked
Rule 80 of the Court of Appeal Rules (application to strike out an appeal)

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, "Multiple Hauliers E.a. Limited Joseph Ngugi Kamau v John Odongo Hagai", Case Analysis (2002). Civil Appeal No. 211 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/204/eng@2002-06-21

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