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Court of AppealDismissedCivil Appeal (Application) No. 225 of 2007· [2011] KECA 378 (KLR)

James Nyamboga Masogo v Kipkebe Limited

Court of Appeal
24 February 2011
Philip Kiptoo TunoiP. K. TunoiEOE. O. O'KubasuDAD. K. S. Aganyanya
641 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that a wrongly dated decree is a fixable clerical error, not grounds to strike out an entire appeal.

What this practically means

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Executive summary

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Kipkebe Limited moved the Court of Appeal at Nakuru under rule 80 of the Court of Appeal Rules to strike out the record of appeal in Civil Appeal No. 225 of 2007, contending that the decree extracted in the High Court at Kericho erroneously bore the date 8th June 2007 when judgment had been delivered on 7th June 2007, rendering the primary document fundamentally defective. Kimaru, J had awarded the respondent special and general damages for injuries sustained in the course of employment with the applicant. The respondent's counsel had discovered the error and sought approval of an amended decree, which the applicant's counsel declined. A differently constituted panel of Tunoi, O'Kubasu and Aganyanya, JJ.A held unanimously that where judgment and decree bear conflicting dates, the date in the judgment takes priority, applying its own unreported decision in Simon Kinyua v Everready Batteries (K) Ltd. The court further held that the applicant could have lodged a supplementary record of appeal under rule 92 to incorporate the corrected decree but instead chose a technical strike-out. Invoking the overriding objective, the court declined to permit technical objections to hinder the interests of justice, dismissed the application, ordered the respondent to file and serve a supplementary record of appeal containing the amended decree within 30 days, and directed that costs be in the appeal. This ruling binds subordinate courts and the High Court on the priority of the judgment date and the curability of clerical defects in decrees on appeal.

Key legal issues

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01

Whether a wrongly dated decree renders a record of appeal fundamentally defective

Holding

No. The date in the judgment takes priority over the date in the decree; the error was excusable and curable via a supplementary record under rule 92.

Reasoning

The court found only one judgment in existence, correctly dated 7th June 2007. The decree erroneously bore 8th June 2007 following extraction. Relying on its own precedent in Simon Kinyua v Everready Batteries (K) Ltd, the date in the judgment takes priority. The applicant could have lodged a supplementary record under rule 92 but opted for the drastic strike-out route. Guided by the overriding objective, the court refused to allow a technicality to defeat the appeal.

p. 2

Legal principles established

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  • Where there is a conflict of dates between the judgment and the decree, the date shown in the judgment takes priority
  • A wrongly dated decree extracted through clerical error is not a fatal defect warranting striking out of an appeal; the overriding objective prevails over technical objections, and the remedy lies in a supplementary record of appeal

Court orders

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  1. 1.Application to strike out the record of appeal dismissed
  2. 2.Respondent ordered to file and serve a supplementary record of appeal containing the amended decree within 30 days
  3. 3.Costs shall be in the appeal
On appeal from
High Court of Kenya at Kericho
HCCC No. 56 of 2004
Jurisdiction invoked
Rule 80 of the Court of Appeal Rules (application to strike out record of appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "James Nyamboga Masogo v Kipkebe Limited", Case Analysis (2011). Civil Appeal (Application) No. 225 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/378/eng@2011-02-24

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