Naftaly Ngugi Gakera v Asenwa Kipchakea Tirop & another [2017] KEELC 2392 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the mention of prayer 1 in the ruling of 9th May 2014 was a clerical error correctable under Section 99
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
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.
Whether the court may, under Section 99, revisit or effectively reverse its own substantive ruling
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
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.
Whether the parties should continue litigating the interlocutory injunction or proceed to a hearing of the suit
The suit, having been certified ready for hearing, should proceed on the merits; the injunction was only a bridge to the hearing
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.
Legal principles established
#- 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
#- 1.Notice of Motion dated 27th November 2015 dismissed with costs to the 2nd defendant
- 2.Directions given to facilitate the hearing and determination of the main suit
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.