Jessie Kuthii Njeru v Johana Ireri Simon & Another [2009] KECA 106 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appeal should be struck out for non-compliance with rule 81 of the Court of Appeal Rules and Order XX Rule 7(2)(4) of the Civil Procedure Rules regarding the extraction of the decree
- 2.Whether the appeal should be permitted to be withdrawn
- 3.Who should bear the costs of the application
Key legal issues
#Costs consequences of a withdrawn appeal where the alleged defect in the decree arose after filing
The appeal was permitted to be withdrawn and no costs order was made against the appellants because the decree in the record of appeal was proper when the appeal was filed, having been approved by the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.
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.
Legal principles established
#- 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
#- 1.Leave granted to the appellants to withdraw Civil Appeal No. 275 of 2007
- 2.The appeal marked as withdrawn with no order as to costs
- 3.No order as to costs against the respondents in the Notice of Motion (the appellants in the withdrawn appeal)
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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)
Relief refused
#Striking out of the appeal with costs
The appeal was instead allowed to be withdrawn, and the court declined to penalise the appellants in costs for a defect not of their making
Costs of the application to the applicant
The court made no order as to costs against the appellants since the decree was proper when the appeal was filed
Costs
No order as to costs - the appeal was marked as withdrawn with no order as to costs, and no order as to costs was made against the appellants on the Notice of Motion
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.
In short the Civil Appeal No. 275 of 2007 is hereby marked as withdrawn with no order as to costs.
The decree in the record of appeal only became improper as a result of subsequent amendments to the judgment which necessitated another decree to be extracted.
we see no reason to penalise the appellants/respondents in costs for a mistake that was not theirs in the first place and which will probably land them into more expenses in mounting a fresh appeal with the newly extracted decree
Issues in the judgment
#The caption lists the applicant (Jessie Kuthii Njeru) as 'RESPONDENT' and the other parties as 'RESPONDENTS/APPELLANTS', which is internally confusing given the body describes Jessie Kuthii Njeru as 'the respondent in the appeal' and the movants as appellants in the Notice of Motion; the party roles in the appeal itself are not clearly stated on the face of the ruling.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jessie Kuthii Njeru v Johana Ireri Simon & Another [2009] KECA 106 (KLR)", 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.