Augustine Kipsang Kiptoo v Cheruiyot Arap Sawe & another [2016] KEELC 875 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Error apparent on the face of the record as a ground for review under Order 45
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.
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.
Computation of delay in seeking substitution
Upon correcting the error and excluding the court vacation period, the delay was 79 days, not 120 days, and the explanation was satisfactory.
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.
Legal principles established
#- 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
#- 1.The court reviewed its ruling and order delivered on 22.4.2015
- 2.Time was extended within which the application for substitution should be made
- 3.The applicant, Joseph Kiprono Sang, was to be substituted in the place of Augustine Kipsang Kiptoo
- 4.The application dated 2.6.2015 was allowed in its entirety
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.