Kombo Namurwe Rashid (Suing as the Administrator to the Estate of Rashid Mashauri Namurwe – Deceased) v David Fabian Mukewa [2019] KEELC 719 (KLR)
The bottom line
#A Kenyan court corrected its own clerical error and awarded a family land they had occupied for 39 years through adverse possession.
What this practically means
#Executive summary
#Key legal issues
#Whether there was a mistake or error apparent on the face of the record warranting review
Yes. The judgment dismissed the suit on the erroneous description of the land as parcel 3502, when the pleadings and affidavit showed the claim was over parcel 3503 registered in the defendant's name. This was an error of fact, not law, apparent on the record.
The Originating Summons expressly stated the plaintiff claimed to be in physical occupation of parcel W. BUKUSU/S. MATEKA/3503. The Court's earlier judgment dismissed the claim only because it described the dispute land as 3502, which was not registered in the defendant's name and had ceased to exist. Counsel's response to the Court's inquiry compounded the error. The error was self-evident on the face of the record and allowing review would not amount to sitting on appeal over the Court's own judgment but correcting an apparent mistake.
Whether the plaintiff proved adverse possession of parcel 3503
Yes. The plaintiff's oral evidence of open, continuous and peaceful occupation since 1975 was unrebutted, exceeding the 12-year statutory period by the time suit was filed in 2014.
The defendant did not attend Court for the hearing and led no evidence; his denial in the replying affidavit remained a mere allegation. The Certificate of Search confirmed parcel 3503 was registered in the defendant's name. Occupation from 1975 to the filing of suit in 2014 spanned 39 years, well in excess of the twelve years required, entitling the plaintiff to the parcel by adverse possession.
Whether the application was made without unreasonable delay
Yes. Judgment was delivered on 15th November 2018, the decree issued on 11th December 2018, and the application filed on 17th December 2018.
Order 45 Rule 1(1) requires the application to be made without unreasonable delay. The Court held that filing six days after the decree issued on 11th December 2018 was not unreasonable. This condition for review was therefore satisfied.
Legal principles established
#- A court may review its own judgment under Sections 80 and 3A of the Civil Procedure Act and Order 45 of the Civil Procedure Rules to avoid real injustice arising from an error or mistake clearly apparent on the face of the record.
- Review lies to correct an apparent error or omission which is self-evident and requires no elaborate argument; misconstruing a statute or proceeding on an incorrect exposition of law is not a ground for review.
- Pleadings must be drafted with reasonable clarity and precision so the court, parties and counsel can appreciate what is in controversy.
- Uncontroverted averments in a replying affidavit unsupported by evidence cannot dislodge uncontroverted oral evidence.
Court orders
#- 1.Judgment is entered for the plaintiff against the defendant
- 2.An order that the plaintiff is entitled to land parcel NOWEST BUKUSU/SOUTH MATEKA/3503 by way of adverse possession
- 3.Cancellation of the registration of the defendant as proprietor of parcel NOWEST BUKUSU/SOUTH MATEKA/3503 and registration of the parcel in the names of the plaintiff
- 4.The defendant to execute all necessary documents to facilitate registration within 30 days, failing which the Deputy Registrar of the Court is at liberty to execute them on the defendant's behalf
- 5.No orders as to costs
- Jurisdiction invoked
- Sections 1A, 3A and 80 of the Civil Procedure Act and Orders 9 Rule 9 and 45 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kombo Namurwe Rashid (Suing as the Administrator to the Estate of Rashid Mashauri Namurwe – Deceased) v David Fabian Mukewa [2019] KEELC 719 (KLR)", Case Analysis (2019). Not stated in the judgment (Bungoma Environment and Land Court suit determined by Originating Summons dated 2nd September 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/719/eng@2019-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.