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ELCAllowedNotice of Motion dated 12th July, 2016 (succeeding suit in which judgment was delivered on 7th February, 2015 by Ombwayo J)· [2017] KEELC 3471 (KLR)

Cecilia Wacuka Karoko v Stephen Josphat Waichigo Wanguku & 3 others [2017] KEELC 3471 (KLR)

Environment and Land Court of Kenya (as inferred; judgment by consent among counsel in the pending suit)
20 February 2017
928 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed you can correct a typing error in a court judgment even after the opposing party has died.

What this practically means

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Executive summary

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The applicant, Cecilia Wacuka Karoko, moved the court by Notice of Motion dated 12th July, 2016 seeking to be substituted for her deceased husband, James Karoko Mahugu, the 3rd respondent who died on 9th March, 2011, and for amendment of the judgment dated 29th January, 2015 and delivered on 7th February, 2015 so as to correct a typographical error recording the Notice of Motion as dated 23rd November, 2011 instead of 23rd December, 2011, enabling her to extract a decree bearing the correct dates. She relied on her appointment as administrator of the deceased's estate in Murang'a High Court Succession Cause No 382 of 2013. At the hearing, leave was granted to amend the legal basis of the application, substituting Sections 1A, 1B, 3A and 100 of the Civil Procedure Act for Section 74 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules. The 1st respondent opposed, arguing the suit against the deceased had abated one year after death. The court held that Order 24 Rule 10 of the Civil Procedure Rules precludes the application of Order 24 where execution of a decree is in issue, following Fidelity Commercial Bank Limited v Greenwoods Limited & 3 others, and that substitution was necessary to give the applicant capacity to seek correction. Finding an obvious clerical mistake under Section 99 of the Civil Procedure Act, the court allowed the substitution and amendment of the judgment. None of the respondents opposed; the application was allowed.

Key legal issues

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01

Whether Order 24 abatement rules apply post-judgment

Holding

Order 24 does not bar substitution sought solely to enable correction of a judgment error, because Rule 10 precludes the Order where execution of a decree is in issue.

Reasoning

The court reasoned that Order 24 of the Civil Procedure Rules governs substitution where parties die during proceedings, but Order 24 Rule 10 excludes its application with respect to execution of a decree or order. Since the substitution was sought only to give the applicant capacity to seek correction of the judgment error and thereafter extract a correct decree, the abatement objection raised by the 1st respondent did not stand in the way.

p. 2
02

Whether the judgment may be amended to correct the date error

Holding

The court allowed the amendment under Section 99 of the Civil Procedure Act as the misdated Notice of Motion was an obvious clerical mistake.

Reasoning

Section 99 of the Civil Procedure Act empowers the court to correct clerical or arithmetical mistakes in judgments, decrees or orders arising from accidental slip or omission, at any time, on its own motion or on application. The court found the recording of the Notice of Motion as dated 23rd November, 2011 instead of 23rd December, 2011 to be an obvious mistake and allowed the amendment as prayed, holding that no prejudice would be suffered by the respondents.

p. 2

Legal principles established

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  • Order 24 Rule 10 precludes the application of Order 24 (substitution on death) with regard to execution of a decree or order; a party may proceed with execution without substituting the legal representative of a deceased party.
  • Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising from accidental slip or omission, may at any time be corrected by the court under Section 99 of the Civil Procedure Act.

Court orders

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  1. 1.The applicant, Cecilia Wacuka Karoko, is substituted for the deceased 3rd respondent, James Karoko Mahugu
  2. 2.The judgment dated 29th January, 2015 and delivered on 7th February, 2015 is amended so that the Notice of Motion is recorded as dated 23rd December, 2011 and not 23rd November, 2011
  3. 3.Leave granted to amend the provisions of law under which the application was brought, deleting Section 74 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules and substituting Sections 1A, 1B, 3A and 100 of the Civil Procedure Act
  4. 4.Costs of the application to the applicant (sought in the motion; no contrary order recorded)

Authorities

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Legislation

  • Law of Succession ActSection 74
  • Probate and Administration RulesRule 73
  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure ActSection 99
  • Civil Procedure ActSection 100
  • Civil Procedure Rules, 2010Order 24 (Rules 3, 4, 7 and 10)

Cases cited (3)

  • Fidelity Commercial Bank Limited v Greenwoods Limited & 3 others
    [2015] eKLR
  • Athman Omar Zuberi v Mamson Asol Apinde
  • Joseph Ng'ang'a Njoroge v Kabiri Mbiti
Jurisdiction invoked
Sections 1A, 1B, 3A and 100 of the Civil Procedure Act; Section 99 of the Civil Procedure Act (correction of clerical errors); Order 24 of the Civil Procedure Rules, 2010

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, "Cecilia Wacuka Karoko v Stephen Josphat Waichigo Wanguku & 3 others [2017] KEELC 3471 (KLR)", Case Analysis (2017). Notice of Motion dated 12th July, 2016 (succeeding suit in which judgment was delivered on 7th February, 2015 by Ombwayo J). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3471/eng@2017-02-20

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