[2002] KEHC 938 (KLR)
The High Court lacks jurisdiction to resettle or amend a decree to conform to the orders of the Court of Appeal once the appellate court's order is settled and sealed. The proper procedure is for the draft decree, after the Court of Appeal's judgment, to be presented to the Court of Appeal for settlement. The...
Source-derived case information.
- Citation
- [2002] KEHC 938 (KLR)
- Parties
- Plaintiff: Kersam Ltd. & 15 Others; Defendant: African Banking Co-operation & Two Others
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 115 of 1998
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- Application dismissed for want of jurisdiction; preliminary objection upheld.
- Legal Topics
- Jurisdiction of High Court, Settlement of Decree, Appeal Orders, Civil Procedure Code Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kersam Ltd. & 15 Others
Plaintiff
African Banking Co-operation & Two Others
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the High Court has jurisdiction to resettle a decree following orders made by the Court of Appeal.
- 2 Whether the application to amend the original decree to conform to the Court of Appeal's orders should be entertained by the High Court.
Ratio Decidendi
The High Court lacks jurisdiction to resettle or amend a decree to conform to the orders of the Court of Appeal once the appellate court's order is settled and sealed. The proper procedure is for the draft decree, after the Court of Appeal's judgment, to be presented to the Court of Appeal for settlement. The preliminary objection raised by the respondent is upheld, and the application is dismissed for want of jurisdiction.
Court Disposition
Application dismissed for want of jurisdiction; preliminary objection upheld.
Orders
- The application to amend the decree is dismissed for want of jurisdiction.
- The file is to be placed before the Chief Justice for directions as requested by counsel.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL CASE NO. 115 OF 1998
KERSAM LTD. & 15 OTHERS…………PLAINTIFFS
VERSUS
AFRICAN BANKING CO-OPERATION & TWO OTHERS ………………………DEFENDANTS
R U L I N G
ON PRELIMINARY POINT
The application herein is brought under Order XX rule 7(4) Civil Procedure Code for settling decree.
This is necessitated by the orders made in this case on appeal by court of Appeal. The intention is to amend the original decree to conform to the orders issued by that court. Decrees on appeal are drawn under Order 41 rule 28 which provides that such decrees shall be drawn under the provisions of rules 6,7, & 8 of Order 20 Civil Procedure Code.
Mr. Khanna for respondent has raised preliminary objection that this court has no jurisdiction to resettle the decree. The jurisdiction lies on the court of appeal. The order made by that court is already settled and sealed by the court. I am inclined to agree with Mr. Khanna. The draft decree after the court of appeal judgement should be presented to the court of appeal for settlement. I therefore uphold the objection and dismiss the application for want of jurisdiction.
Dated 23rd August, 2002.
HON. J. KHAMINWA
LADY COMMISSIONER
MR. NASSIR MOHAMMED
I say I am dissatisfied with the ruling.
Court has shown its in impotence although it has power. My client has failed to execute decree for two years. I apply for this file to be placed before the Chief Justice for directions.
HON. J. KHAMINWA
LADY COMMISSIONER
COURT
At the request of counsel, I direct that the Deputy Registrar do place this file before the Chief Justice for directions.
HON. KHAMINWA
LADY COMMISSIONER