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ELCDismissedNot stated in the judgment· [2017] KEELC 2392 (KLR)

Naftaly Ngugi Gakera v Asenwa Kipchakea Tirop & another [2017] KEELC 2392 (KLR)

High Court of Kenya
13 June 2017
1,544 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court confirmed Section 99 only fixes clerical slips in rulings — it cannot be used to change what a judge actually decided.

What this practically means

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Executive summary

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The plaintiff brought a Notice of Motion dated 27th November 2015 under Sections 3A and 99 of the Civil Procedure Act and Order 40 and Order 37 of the Civil Procedure Rules, seeking enlargement of time and amendment of the ruling delivered by Hon. Lady Justice L. N. Waithaka on 9th May 2014, which had allowed the plaintiff's Notice of Motion dated 4th June 2013 and granted prayers 1 and 2, with costs in the cause. The plaintiff contended that the ruling contained clerical errors, inadvertently stating that prayers 1 and 2 were granted instead of prayers 2 and 3, rendering the order ineffective, and also sought inhibitions over Dundori/Mugwathi Block 2/297. The second defendant opposed, arguing the application had been heard and determined on its merits, that there was no clerical mistake, and that the application was res judicata. Justice D. O. Ohungo held that the ruling of 9th May 2014 was a considered ruling in which the court had deliberately determined which prayers to allow; there was no valid basis to conclude that the specific mention of prayer 1 was a mistake or that the court intended to allow prayer 3. Following the Court of Appeal's decision in the Kenya Seed Company case on the slip rule, the court held that amending the ruling as sought would amount to sitting on appeal on its own decision, which it had no jurisdiction to do, and that no intention of the learned judge could be ascertained beyond what was plainly stated. The application was dismissed with costs to the second defendant, and directions were given for the main suit, which had been certified ready for hearing, to proceed on its merits.

Key legal issues

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01

Whether the mention of prayer 1 in the ruling of 9th May 2014 was a clerical error correctable under Section 99

Holding

No; the ruling was a considered one in which the court deliberately determined which prayers to allow, and there is no basis to conclude that mention of prayer 1 was a mistake or that the court intended to allow prayer 3 instead

Reasoning

The court examined the ruling of 9th May 2014 and found it was a considered decision in which the judge addressed which prayers to allow out of the five prayers in the application of 4th June 2013. Section 99 applies only to clerical or arithmetical mistakes or accidental slips. Deliberate selection of a prayer is not such an error, and no basis existed to suppose prayer 3 was intended.

p. 3
02

Whether the court may, under Section 99, revisit or effectively reverse its own substantive ruling

Holding

No; doing so would amount to sitting on appeal on its own decision, which is impermissible, and the court cannot ascertain any intention of the judge beyond what is plainly stated in the ruling

Reasoning

Relying on the Court of Appeal's exposition of the slip rule in the Kenya Seed Company case, the court held that Section 99 codifies the slip rule and operates within the court's inherent jurisdiction, but only for limited purposes. Amending the ruling as sought would require redoing the application and exercising an independent discretion, which Section 99 does not permit.

p. 3
03

Whether the parties should continue litigating the interlocutory injunction or proceed to a hearing of the suit

Holding

The suit, having been certified ready for hearing, should proceed on the merits; the injunction was only a bridge to the hearing

Reasoning

The court noted the matter had been certified ready for hearing in October 2016 and expressed the view that parties should not litigate the interlocutory injunction endlessly. Directions were to be given for the hearing and determination of the suit.

p. 3

Legal principles established

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  • Section 99 of the Civil Procedure Act permits correction only of clerical or arithmetical mistakes or accidental slips; it does not permit a court to sit on appeal on its own decision or to redo a case
  • The slip rule can only be applied to give effect to the intention of the court when it gave its judgment, and only where the court is fully satisfied of that intention

Court orders

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  1. 1.Notice of Motion dated 27th November 2015 dismissed with costs to the 2nd defendant
  2. 2.Directions given to facilitate the hearing and determination of the main suit

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 99
  • Civil Procedure RulesOrder 40 rules 1, 2, 3, 4 and 5
  • Civil Procedure RulesOrder 37 rule 8

Cases cited (3)

  • Republic v Attorney General & 15 others Ex-Parte Kenya Seed Company Limited & 5 others
    [2010] eKLR
  • Lakhamshi Brothers Ltd v R. Raja & Sons
    [1966] EA 313
  • Raniga Case (supra)
Jurisdiction invoked
Sections 3A and 99 of the Civil Procedure Act; Order 40 rules 1-5 and Order 37 rule 8 of the Civil Procedure Rules

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, "Naftaly Ngugi Gakera v Asenwa Kipchakea Tirop & another [2017] KEELC 2392 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2392/eng@2017-06-13

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