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Court of AppealOtherCivil Appeal (Appli) 275 of 2007· [2009] KECA 106 (KLR)

Jessie Kuthii Njeru v Johana Ireri Simon Stephen Kibe

Court of Appeal of Kenya
30 October 2009
Philip Kiptoo TunoiP. K. TunoiEGE. M. GithinjiJOJ. W. Onyango Otieno
815 words in judgment
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The bottom line

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Kenya's Court of Appeal let appellants withdraw an appeal without paying costs because the decree defect wasn't their fault.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nyeri (Tunoi, Githinji and Onyango Otieno, JJA) on a Notice of Motion dated 17th January 2008 by Jessie Kuthii Njeru seeking to strike out Civil Appeal No. 275 of 2007, an appeal from the judgment and decree of the High Court of Kenya at Embu (Khaminwa, J.) in H.C.C.C. No. 6 of 1995. The application, supported by an affidavit sworn by the applicant's counsel Morris Gachura Njage, alleged that the appeal was not instituted within sixty days of the notice of appeal, that rule 81 of the Court of Appeal Rules was not complied with (no registrar's certificate annexed and no evidence of service of the letter applying for proceedings), and that the decree was extracted in contravention of Order XX Rule 7(2)(4) of the Civil Procedure Rules. The appellants' counsel, Peter Mwangi Muchira, replied that the appeal was filed in time, that the respondent's counsel had declined to approve the draft decree, and that the Deputy Registrar had sealed it as required. At the hearing, Mr. Muchira sought leave to withdraw the appeal, which Mr. Njage did not oppose, asking only for costs. The court granted leave, holding that the appeal was proper when filed since the decree had been approved by the Deputy Registrar after the respondent's counsel declined to approve it; the decree became improper only through subsequent amendments to the judgment. The court declined to penalise the appellants in costs and marked the appeal as withdrawn with no order as to costs.

Key legal issues

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01

Costs consequences of a withdrawn appeal where the alleged defect in the decree arose after filing

Holding

The appeal was permitted to be withdrawn and no costs order was made against the appellants because the decree in the record of appeal was proper when the appeal was filed, having been approved by the Deputy Registrar after the appellants sought the respondent's counsel's approval in vain.

Reasoning

The court found that the draft decree was drawn in line with the judgment read in open court, the respondent's counsel declined to approve it, and the Deputy Registrar sealed it as required by the Civil Procedure Rules. The decree only became improper when the judgment was later amended, requiring a new decree. Since the defect resulted from the respondent's own refusal to approve and subsequent amendments, the appellants should not bear the costs of the application.

p. 2

Legal principles established

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  • Where a decree is proper when an appeal is filed, and becomes improper only because of subsequent amendments to the judgment necessitating a fresh decree, the appellant should not be penalised in costs for that subsequent defect.

Court orders

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  1. 1.Leave granted to the appellants to withdraw Civil Appeal No. 275 of 2007
  2. 2.The appeal marked as withdrawn with no order as to costs
  3. 3.No order as to costs against the respondents in the Notice of Motion (the appellants in the withdrawn appeal)
On appeal from
High Court of Kenya at Embu
H.C.C.C. No. 6 of 1995
Jurisdiction invoked
Court of Appeal Rules (appeal from the High Court; application under the Court of Appeal Rules to strike out the record of 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, "Jessie Kuthii Njeru v Johana Ireri Simon Stephen Kibe", Case Analysis (2009). Civil Appeal (Appli) 275 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/106/eng@2009-10-30

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