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ELCDismissedNotice of Motion dated 5th October 2018 (Thika ELC suit, judgment of 23rd February 2018)· [2019] KEELC 3748 (KLR)
Javid Iqbal Karim (as the administrator of the Estate of the late Gulam Fatima) & another v Ze Yun Yang [2019] KEELC 3748 (KLR)
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·~4 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#The Plaintiffs/Applicants filed a Notice of Motion dated 5th October 2018 under Sections 3A and 99 of the Civil Procedure Act seeking correction of the judgment delivered at Thika on 23rd February 2018 and issuance of a decree. They contended that counsel's notes recorded an award of Kshs.4,702,313/= plus interest and costs, but the typed judgment omitted 'plus interest', constituting an accidental slip correctable under Section 99, with no prejudice to the Respondent. The Respondent opposed through Grounds of Opposition, arguing that the award of interest is discretionary and not a clerical error, that any challenge to discretion lies by appeal, and that the application was brought after inordinate delay as an afterthought. Justice L. Gacheru perused the court record and confirmed that a typed judgment was delivered on 23rd February 2018, awarding the Plaintiffs Kshs.4,702,313/= as balance of the purchase price plus costs of the suit, with no award of interest. The Court held that if counsel's notes recorded 'plus interest', that was counsel's error; there was no clerical or arithmetical error on the court record, and no handwritten notes of the orders existed. The accidental slip rule under Section 94/99 therefore could not apply. The Court found the application misplaced and vexatious and dismissed it entirely with costs to the Defendant/Respondent.
Key legal issues
#01
Whether the Court can, under Section 99 of the Civil Procedure Act, correct a judgment to add an award of interest allegedly omitted
Holding
No. Section 99 applies only to clerical or arithmetical mistakes or accidental slips; where the court never intended to award interest, there is no error to correct and the remedy is appeal.
Reasoning
The Court perused its record and confirmed it read a typed judgment on 23rd February 2018 awarding Kshs.4,702,313/= as balance of purchase price plus costs only. It found no handwritten notes of orders and concluded that if counsel's notes recorded 'plus interest', that was counsel's error, not a clerical error on the court record. The application was therefore dismissed as frivolous and vexatious.
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Legal principles established
#- Section 99 of the Civil Procedure Act permits correction only of clerical or arithmetical mistakes or accidental slips, not judicial decisions on matters such as interest, which must be challenged by appeal
Court orders
#- 1.The Notice of Motion application dated 5th October 2018 is dismissed entirely
- 2.Costs of the application awarded to the Defendant/Respondent
- Jurisdiction invoked
- Sections 3A and 99 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Javid Iqbal Karim (as the administrator of the Estate of the late Gulam Fatima) & another v Ze Yun Yang [2019] KEELC 3748 (KLR)", Case Analysis (2019). Notice of Motion dated 5th October 2018 (Thika ELC suit, judgment of 23rd February 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3748/eng@2019-04-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.