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ELCPartially Allowed· [2020] KEELC 3766 (KLR)

Wilson Kaiga Gidion Gudahi v (suing as the legal representative of the Estate of the late Gideon Gudahi Kahiga) v Daniel Livoi Gideon [2020] KEELC 3766 (KLR)

Environment and Land Court (High Court), Bungoma
23 January 2020
536 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 corrected its own order, swapping the wrong police station for the right one so a land survey could proceed with security.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 17th December 2019 in which the plaintiff sought review and/or variation of orders issued by the court in its ruling dated 21st November 2019 concerning the survey and sub-division of land parcel Bungoma/Kamakoiwa/577. Order (e) of the earlier ruling had directed the Officer Commanding Station (OCS) Mukuyuni Police Station to provide security during the survey exercise. It transpired that Mukuyuni is in fact a police post and not a police station, and when the plaintiff served the extracted order, the Officer Commanding Police Division in Bungoma advised that the order should have been directed to the Officer Commanding Mbakalo Police Station, the station with jurisdiction over the disputed land. The application, grounded on Sections 1, 1A, 3 and 3A of the Civil Procedure Act and supported by the plaintiff's affidavit, was not contested. The court noted that although Order 45 Rule 1 of the Civil Procedure Rules was not cited, it empowers the court to review its own orders where there is some mistake or error apparent on the face of the record, or for any other sufficient reason. Finding that the plaintiff had mistakenly sought orders directed at the wrong officer, Olao J varied the ruling of 21st November 2019 in paragraph 2, substituting the OCS Mbakalo Police Station as the officer to provide security during the survey exercise, and made no order as to costs.

Key legal issues

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01

Whether the orders of 21st November 2019 should be reviewed to correct a mistake as to the proper police station

Holding

The order was varied because the plaintiff had mistakenly named Mukuyuni Police Station when the land falls within the jurisdiction of Mbakalo Police Station.

Reasoning

The plaintiff himself supplied the name Mukuyuni Police Station in his application, but it emerged that Mukuyuni is a police post, not a station, and that the Officer Commanding Mbakalo Police Station is the proper officer within whose jurisdiction the disputed parcel lies. This constituted a mistake or error apparent on the face of the record justifying review under Order 45 Rule 1 and the inherent jurisdiction under Section 3A of the Civil Procedure Act. The application was uncontested.

p. 2

Legal principles established

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  • The court possesses inherent power under Section 3A of the Civil Procedure Act to make orders necessary for the ends of justice or to prevent abuse of process
  • Order 45 Rule 1 of the Civil Procedure Rules empowers the court to review its own orders where there is a mistake or error apparent on the face of the record or for any other sufficient reason

Court orders

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  1. 1.The court's ruling dated 21st November 2019 is varied in paragraph 2 to read: 'The OCS MBAKALO POLICE STATION to provide security during the exercise.'
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure ActSections 1, 1A, 3 and 3A
  • Civil Procedure RulesOrder 45 Rule 1
Jurisdiction invoked
Sections 1, 1A, 3 and 3A of the Civil Procedure Act (review of court's own orders, Order 45 Rule 1 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, "Wilson Kaiga Gidion Gudahi v (suing as the legal representative of the Estate of the late Gideon Gudahi Kahiga) v Daniel Livoi Gideon [2020] KEELC 3766 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3766/eng@2020-01-23

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