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ELCAllowedNotice of Motion dated 2.6.2015· [2016] KEELC 875 (KLR)

Augustine Kipsang Kiptoo v Cheruiyot Arap Sawe & another [2016] KEELC 875 (KLR)

High Court of Kenya
29 April 2016
1,534 words in judgment
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The bottom line

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Kenya's High Court corrected a date error in its own ruling, recomputed the delay excluding court vacations, and allowed a deceased plaintiff's replacement to proceed with the case.

What this practically means

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Executive summary

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Joseph Kiprono Sang applied by Notice of Motion dated 2.6.2015 for review of a ruling delivered on 22.4.2015 which had dismissed his application for substitution in place of the deceased plaintiff, Augustine Kipsang Kiptoo, who died on 13.2.2012. The applicant sought extension of time and to be substituted as plaintiff, relying on a special limited grant ad litem ordered on 13.8.2014 but signed and issued only on 2.10.2014, delays in the court registry having prevented earlier collection. The defendant opposed on grounds that the court was functus officio and that the application was res judicata. The court, applying Order 45 of the Civil Procedure Rules, 2010 and Section 80 of the Civil Procedure Act, found an error apparent on the face of the record: its earlier ruling had wrongly treated the grant as issued on 13.8.2014 when it was in fact issued on 2.10.2014, the date of an order cannot precede its issuance. Recomputing time under Order 50, Rule 4, which excludes the court vacation period from 21st December to 13th January, the court found the true delay was 79 days, not 120 days, and accepted the explanation for it. The court held that this error contributed to the earlier dismissal. The application was allowed in its entirety: the ruling of 22.4.2015 was reviewed, time for the substitution application was extended, and the applicant was substituted in place of the deceased plaintiff. Judgment delivered at Eldoret on 29th April 2016 by Antony Ombwayo, Judge.

Key legal issues

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01

Error apparent on the face of the record as a ground for review under Order 45

Holding

The special limited grant ad litem was signed and issued on 2.10.2014, not 13.8.2014 as earlier found; the earlier ruling's error justified review.

Reasoning

The court examined the limited grant of letters of administration ad colligenda bona defunctis and found it contained contradictory dates: made 13.8.2014 but issued 2.10.2014, yet reciting the reverse. Since the court had not signed the order until 2.10.2014, it could not have been issued earlier, so the earlier ruling's finding on the date of issuance was an error apparent on the face of the record requiring correction.

p. 3
02

Computation of delay in seeking substitution

Holding

Upon correcting the error and excluding the court vacation period, the delay was 79 days, not 120 days, and the explanation was satisfactory.

Reasoning

The court applied Order 50, Rule 4 excluding the period 21st December to 13th January from computation of time. Time began running on 2.10.2014 (the true date of issuance) and stopped on 21.12.2014, resuming 13.1.2015. This reduced the apparent delay from 120 days to 79 days, and the court accepted the explanation, including delays attributable to the registry and the applicant's circumstances.

p. 3

Legal principles established

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  • The date an order is made precedes its date of issuance; time for computation of limitation runs from the date of issuance, not the date of the order.
  • Where the Civil Procedure Rules prescribe no period for filing a review, the application must be filed within reasonable time.
  • The court vacation period between 21st December and 13th January is excluded from computation of time under Order 50, Rule 4.

Court orders

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  1. 1.The court reviewed its ruling and order delivered on 22.4.2015
  2. 2.Time was extended within which the application for substitution should be made
  3. 3.The applicant, Joseph Kiprono Sang, was to be substituted in the place of Augustine Kipsang Kiptoo
  4. 4.The application dated 2.6.2015 was allowed in its entirety

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Civil Procedure Rules, 2010Order 45
  • Civil Procedure Rules, 2010Order 49
  • Civil Procedure Rules, 2010Order 50, Rule 4
  • Civil Procedure Act, Cap. 21, Laws of KenyaSection 80
Jurisdiction invoked
Article 159 of the Constitution; Order 45 and Order 49 of the Civil Procedure Rules, 2010; Section 80 of the Civil Procedure Act, Cap. 21

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, "Augustine Kipsang Kiptoo v Cheruiyot Arap Sawe & another [2016] KEELC 875 (KLR)", Case Analysis (2016). Notice of Motion dated 2.6.2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/875/eng@2016-04-29

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